Section 1. Title of the Code. – This Code shall be known as "The Section 7. Founders’ shares.
s’ shares. – Founders’ shares classified as or trustees are duly elected and qualified in accordance with
Corporation Code of the Philippines." (n)
Section 2. Corporation defined. – A corporation is an artificial
being created by operation of law, having the right of succession
and the powers, attributes and properties expressly authorized by
law or incident to its existence. (2)
Section 3. Classes of corporations. – Corporations formed or
organized under this Code may be stock or non-stock
corporations. Corporations which have capital stock divided into
shares and are authorized to distribute to the holders of such
shares dividends or allotments of the surplus profits on the basis
of the shares held are stock corporations. All other corporations
are non-stock corporations. (3a)
Section 4. Corporations created by special laws or charters. –
Corporations created by special laws or charters shall be
governed primarily by the provisions of the special law or charter
creating them or applicable to them, supplemented by the
provisions of this Code, insofar as they are applicable. (n)
Section 5. Corporators and incorporators, stockholders and
members. – Corporators are those who compose a corporation,
whether as stockholders or as members. Incorporators are those
stockholders or members mentioned in the articles of
incorporation as originally forming and composing the corporation
and who are signatories thereof.
Corporators in a stock corporation are called stockholders or
shareholders. Corporators in a non-stock corporation are called
members. (4a)
Section 6. Classification of shares. – The shares of stock of stock
corporations may be divided into classes or series of shares, or
both, any of which classes or series of shares may have such
rights, privileges or restrictions as may be stated in the articles of
incorporation: Provided, That no share may be deprived of voting
rights except those classified and issued as "preferred" or
"redeemable" shares, unless otherwise provided in this Code:
Provided, further, That there shall always be a class or series of
shares which have complete voting rights. Any or all of the shares
or series of shares may have a par value or have no par value as
may be provided for in the articles of incorporation: Provided,
however, That banks, trust companies, insurance companies,
public utilities, and building and loan associations shall not be
permitted to issue no-par value shares of stock.
Preferred shares of stock issued by any corporation may be given
preference in the distribution of the assets of the corporation in
case of liquidation and in the distribution of dividends, or such
other preferences as may be stated in the articles of incorporation
which are not violative of the provisions of this Code: Provided,
That preferred shares of stock may be issued only with a stated
par value. The board of directors, where authorized in the articles
of incorporation, may fix the terms and conditions of preferred
shares of stock or any series thereof: Provided, That such terms
and conditions shall be effective upon the filing of a certificate
thereof with the Securities and Exchange Commission.
Shares of capital stock issued without par value shall be deemed
fully paid and non-assessable and the holder of such shares shall
not be liable to the corporation or to its creditors in respect thereto:
Provided; That shares without par value may not be issued for a
consideration less than the value of five (P5.00) pesos per share:
Provided, further, That the entire consideration received by the
corporation for its no-par value shares shall be treated as capital
and shall not be available for distribution as dividends.
A corporation may, furthermore, classify its shares for the purpose
of insuring compliance with constitutional or legal requirements.
Except as otherwise provided in the articles of incorporation and
stated in the certificate of stock, each share shall be equal in all
respects to every other share.
Where the articles of incorporation provide for non-voting shares
in the cases allowed by this Code, the holders of such shares
shall nevertheless be entitled to vote on the following matters:
1. Amendment of the articles of incorporation;
2. Adoption and amendment of by-laws;
3. Sale, lease, exchange, mortgage, pledge or other
disposition of all or substantially all of the corporate
property;
4. Incurring, creating or increasing bonded indebtedness;
5. Increase or decrease of capital stock;
6. Merger or consolidation of the corporation with another
corporation or other corporations;
7. Investment of corporate funds in another corporation or
business in accordance with this Code; and
8. Dissolution of the corporation.
Except as provided in the immediately preceding paragraph, the
vote necessary to approve a particular corporate act as provided
in this Code shall be deemed to refer only to stocks with voting
rights. (5a)
(In case all the share are without par value):
such in the articles of incorporation may be given certain rights
and privileges not enjoyed by the owners of other stocks, provided
that where the exclusive right to vote and be voted for in the
election of directors is granted, it must be for a limited period not
to exceed five (5) years subject to the approval of the Securities
and Exchange Commission. The five-year period shall commence
from the date of the aforesaid approval by the Securities and
Exchange Commission. (n)
Section 8. Redeemable shares. – Redeemable shares may be
issued by the corporation when expressly so provided in the
articles of incorporation. They may be purchased or taken up by
the corporation upon the expiration of a fixed period, regardless of
the existence of unrestricted retained earnings in the books of the
corporation, and upon such other terms and conditions as may be
stated in the articles of incorporation, which terms and conditions
must also be stated in the certificate of stock representing said
shares. (n)
Section 9. Treasury shares. – Treasury shares are shares of
stock which have been issued and fully paid for, but subsequently
reacquired by the issuing corporation by purchase, redemption,
donation or through some other lawful means. Such shares may
again be disposed of for a reasonable price fixed by the board of
directors. (n)
TITLE II
INCORPORATION AND ORGANIZATION OF PRIVATE
CORPORATIONS
Section 10. Number and qualifications of incorporators. – Any
number of natural persons not less than five (5) but not more than
fifteen (15), all of legal age and a majority of whom are residents
of the Philippines, may form a private corporation for any lawful
purpose or purposes. Each of the incorporators of s stock
corporation must own or be a subscriber to at least one (1) share
of the capital stock of the corporation. (6a)
Section 11. Corporate term. – A corporation shall exist for a
period not exceeding fifty (50) years from the date of incorporation
unless sooner dissolved or unless said period is extended. The
corporate term as originally stated in the articles of incorporation
may be extended for periods not exceeding fifty (50) years in any
single instance by an amendment of the articles of incorporation,
in accordance with this Code; Provided, That no extension can be
made earlier than five (5) years prior to the original or subsequent
expiry date(s) unless there are justifiable reasons for an earlier
extension as may be determined by the Securities and Exchange
Commission. (6)
Section 12. Minimum capital stock required of stock
corporations. – Stock corporations incorporated under this Code
shall not be required to have any minimum authorized capital
stock except as otherwise specifically provided for by special law,
and subject to the provisions of the following section.
Section 13. Amount of capital stock to be subscribed and paid for
the purposes of incorporation. – At least twenty-five percent (25%)
of the authorized capital stock as stated in NAME
the articles of
incorporation must be subscribed at the time of incorporation, and
at least twenty-five (25%) per cent ___________________
of the total subscription must
be paid upon subscription, the balance to be payable on a date or
___________________
dates fixed in the contract of subscription without need of call, or
in the absence of a fixed date or dates, upon call for payment by
the board of directors: Provided,___________________
however, That in no case shall
the paid-up capital be less than five Thousand (P5,000.00) pesos.
(n) ___________________
Section 14. Contents of the articles of incorporation. – All
corporations organized under this code shall file with the
___________________
Securities and Exchange Commission articles of incorporation in
any of the official languages duly signed and acknowledged by all
of the incorporators, containing substantially the following matters,
except as otherwise prescribed by this Code or by special law:
1. The name of the corporation;
2. The specific purpose or purposes for NAMEwhich the corporation
is being incorporated. Where a corporation has more than one
stated purpose, the articles of___________________
incorporation shall state which is
the primary purpose and which is/are the secondary purpose
or purposes: Provided, That ___________________
a non-stock corporation may not
include a purpose which would change or contradict its nature
as such;
___________________
3. The place where the principal office of the corporation is to
be located, which must be within the Philippines;
___________________
4. The term for which the corporation is to exist;
5. The names, nationalities and residences of the
incorporators; ___________________
6. The number of directors or trustees, which shall not be less
than five (5) nor more than fifteen (15);
7. The names, nationalities and residences of persons who
shall act as directors or trustees until the first regular directors
That I have been elected by the subscribers of the corporation as
this Code;
8. If it be a stock corporation, the amount of its authorized
capital stock in lawful money of the Philippines, the number of
shares into which it is divided, and in case the share are par
value shares, the par value of each, the names, nationalities
and residences of the original subscribers, and the amount
subscribed and paid by each on his subscription, and if some
or all of the shares are without par value, such fact must be
stated;
9. If it be a non-stock corporation, the amount of its capital, the
Name ofof the contributors and the
names, nationalities and residences
amount contributed by each; Subscriber
and
10. Such other matters as are not inconsistent with law and
which the incorporators___________________
may deem necessary and convenient.
The Securities and Exchange Commission shall not accept the
___________________
articles of incorporation of any stock corporation unless
accompanied by a sworn statement of the Treasurer elected by
the subscribers showing___________________
that at least twenty-five (25%) percent of
the authorized capital stock of the corporation has been
subscribed, and at least ___________________
twenty-five (25%) of the total subscription
has been fully paid to him in actual cash and/or in property the fair
valuation of which is equal to at least twenty-five (25%) percent of
___________________
the said subscription, such paid-up capital being not less than five
thousand (P5,000.00) pesos.
___________________
Section 15. Forms of Articles
of Incorporation. – Unless otherwise
prescribed by special law, articles of incorporation of all domestic
corporations shall comply substantially with the following form:
ARTICLES OF INCORPORATION
OF Name of
Subscriber
__________________________
(Name of Corporation)
KNOW ALL MEN BY THESE PRESENTS: ___________________
The undersigned incorporators, all of legal age and a majority of
whom are residents of the Philippines, have this day voluntarily
___________________
agreed to form a (stock) (non-stock) corporation under the laws of
the Republic of the Philippines;
___________________
AND WE HEREBY CERTIFY:
FIRST: That the name of said corporation shall be
"_____________________, INC.___________________
or CORPORATION";
SECOND: That the purpose or purposes for which such
___________________
corporation is incorporated are: (If there is more than one
purpose, indicate primary and secondary purposes);
THIRD: That the principal office of the corporation is located in the corporation is non-stock, Nos. 7, 8 and 9 of the above articles may
City/Municipality of ________________________, Province of
_______________________, Philippines;
FOURTH: That the term for which said corporation is to exist is
_____________ years from and after the date of issuance of the
certificate of incorporation;
FIFTH: That the names, nationalities and residences of the
incorporators of the corporation are as follows:
NATIONALITY
___________________
___________________
___________________
___________________
___________________
SIXTH: That the number of directors or trustees of the corporation
shall be _______; and the names, nationalities and residences of
the first directors or trustees of the corporation are as follows:
NATIONALITY
___________________
___________________
___________________
___________________
___________________
___________________ ___________________
___________________
SEVENTH: That the authorized capital stock of the corporation is
______________________ (P___________) PESOS in lawful
money of the Philippines, divided into __________ shares with the
par value of ____________________ (P_____________) Pesos
per share.
That the capital stock of the corporation is ______________ Treasurer thereof, to act as such until my successor has been
shares without par value. (In case some shares have par value duly elected and qualified in accordance with the by-laws of the
and some are without par value): That the capital stock of said corporation, and that as such Treasurer, I hereby certify under
corporation consists of _____________ shares of which oath that at least 25% of the authorized capital stock of the
______________ shares are of the par value of corporation has been subscribed and at least 25% of the total
_________________ (P____________) PESOS each, and of subscription has been paid, and received by me, in cash or
which _________________ shares are without par value. property, in the amount of not less than P5,000.00, in accordance
EIGHTH: That at least twenty five (25%) per cent of the authorized with the Corporation Code.
capital stock above stated has been subscribed as follows: ____________________
(Signature of Treasurer)
Nationality No. of Shares SUBSCRIBED AND SWORN Amount
to before me, a Notary Public, for
Subscribed and in the City/Municipality Subscribed
of___________________Province of
_____________________, this _______ day of ___________, 19
___________________ ___________________ ___________________
_____; by __________________ with Res. Cert. No.
___________ issued at _______________________ on
___________________ ___________________ ____________, 19___________________
______
NOTARY PUBLIC
___________________ ___________________ My commission expires on _________, 19 _____
___________________
Doc. No. _________;
___________________ ___________________ Page No. _________; ___________________
Book No. ________;
Series of 19____ (7a)
___________________ ___________________ ___________________
Section 16. Amendment of Articles of Incorporation. – Unless
otherwise prescribed by this Code or by special law, and for
___________________
___________________ legitimate purposes, ___________________
any provision or matter stated in the articles
NINTH: That the above-named subscribers have paid at least of incorporation may be amended by a majority vote of the board
twenty-five (25%) percent of the total subscription as follows: of directors or trustees and the vote or written assent of the
stockholders representing at least two-thirds (2/3) of the
Amount Subscribed Total
outstanding capital stock, without prejudice to the appraisal right
Paid-In in accordance with the provisions of
of dissenting stockholders
this Code, or the vote or written assent of at least two-thirds (2/3)
___________________ of the members if it be a non-stock corporation.
___________________
The original and amended articles together shall contain all
___________________ provisions required by law to be set out in the articles of
___________________
incorporation. Such articles, as amended shall be indicated by
underscoring the change or changes made, and a copy thereof
___________________ ___________________
duly certified under oath by the corporate secretary and a majority
of the directors or trustees stating the fact that said amendment or
___________________ amendments ___________________
have been duly approved by the required vote of the
stockholders or members, shall be submitted to the Securities and
___________________ ___________________
Exchange Commission.
(Modify Nos. 8 and 9 if shares are with no par value. In case the The amendments shall take effect upon their approval by the
Securities and Exchange Commission or from the date of filing
be modified accordingly, and it is sufficient if the articles state the with the said Commission if not acted upon within six (6) months
amount of capital or money contributed or donated by specified from the date of filing for a cause not attributable to the
corporation.
persons, stating the names, nationalities and residences of the
contributors or donors and the respective amount given by each.) Section 17. Grounds when articles of incorporation or amendment
TENTH: That _____________________ has been elected by the may be rejected or disapproved. – The Securities and Exchange
subscribers as Treasurer of the Corporation to act as such until Commission may reject the articles of incorporation or disapprove
any amendment thereto if the same is not in compliance with the
his successor is duly elected and qualified in accordance with the
by-laws, and thatRESIDENCE
as such Treasurer, he has been authorized to requirements of this Code: Provided, That the Commission shall
give the incorporators a reasonable time within which to correct or
receive for and in the name and for the benefit of the corporation,
all subscription (or fees) or contributions or donations paid or modify the objectionable portions of the articles or amendment.
___________________ The following are grounds for such rejection or disapproval:
given by the subscribers or members.
ELEVENTH: (Corporations which will engage in any business or 1. That the articles of incorporation or any amendment
___________________
activity reserved for Filipino citizens shall provide the following): thereto is not substantially in accordance with the form
"No transfer of stock or interest which shall reduce the ownership prescribed herein;
___________________
of Filipino citizens to less than the required percentage of the 2. That the purpose or purposes of the corporation are
capital stock as provided by existing laws shall be allowed or patently unconstitutional, illegal, immoral, or contrary to
permitted to___________________
be recorded in the proper books of the corporation government rules and regulations;
3. That the Treasurer’s Affidavit concerning the amount of
and this restriction shall be indicated in all stock certificates issued
by the corporation." capital stock subscribed and/or paid is false;
___________________
IN WITNESS WHEREOF, we have hereunto signed these Articles 4. That the percentage of ownership of the capital stock to
of Incorporation, this __________ day of ________________, 19 be owned by citizens of the Philippines has not been
______ in the City/Municipality of ____________________, complied with as required by existing laws or the
Province of ________________________, Republic of the Constitution.
Philippines. No articles of incorporation or amendment to articles of
RESIDENCE incorporation of banks, banking and quasi-banking institutions,
___________________
building and loan associations, trust companies and other financial
___________________ intermediaries, insurance companies, public utilities, educational
institutions, and other corporations governed by special laws shall
___________________
___________________ be accepted or approved by the Commission unless accompanied
________________________________ by a favorable recommendation of the appropriate government
(Names and signatures of the incorporators) agency to the effect that such articles or amendment is in
___________________
SIGNED IN THE PRESENCE OF: accordance with law. (n)
Section 18. Corporate name. – No corporate name may be
___________________ ___________________
allowed by the Securities and Exchange Commission if the
(Notarial Acknowledgment) proposed name is identical or deceptively or confusingly similar to
TREASURER’S ___________________
AFFIDAVIT that of any existing corporation or to any other name already
REPUBLIC OF THE PHILIPPINES) protected by law or is patently deceptive, confusing or contrary to
CITY/MUNICIPALITY OF ) S.S. existing laws. When a change in the corporate name is approved,
PROVINCE OF ) the Commission shall issue an amended certificate of
I, ____________________, being duly sworn, depose and say: incorporation under the amended name. (n)
Section 19. Commencement of corporate existence. – A private
corporation formed or organized under this Code commences to
have corporate existence and juridical personality and is deemed
incorporated from the date the Securities and Exchange
Commission issues a certificate of incorporation under its official
seal; and thereupon the incorporators, stockholders/members and
their successors shall constitute a body politic and corporate
under the name stated in the articles of incorporation for the
period of time mentioned therein, unless said period is extended
or the corporation is sooner dissolved in accordance with law. (n)
Section 20. De facto corporations. – The due incorporation of any
corporation claiming in good faith to be a corporation under this
Code, and its right to exercise corporate powers, shall not be
inquired into collaterally in any private suit to which such
corporation may be a party. Such inquiry may be made by the
Solicitor General in a quo warranto proceeding. (n)
Section 21. Corporation by estoppel. – All persons who assume
to act as a corporation knowing it to be without authority to do so
shall be liable as general partners for all debts, liabilities and
damages incurred or arising as a result thereof: Provided,
however, That when any such ostensible corporation is sued on
any transaction entered by it as a corporation or on any tort
committed by it as such, it shall not be allowed to use as a
defense its lack of corporate personality.
On who assumes an obligation to an ostensible corporation as
such, cannot resist performance thereof on the ground that there
was in fact no corporation. (n)
Section 22. Effects on non-use of corporate charter and
continuous inoperation of a corporation. – If a corporation does
not formally organize and commence the transaction of its
business or the construction of its works within two (2) years from
the date of its incorporation, its corporate powers cease and the
corporation shall be deemed dissolved. However, if a corporation
has commenced the transaction of its business but subsequently
becomes continuously inoperative for a period of at least five (5)
years, the same shall be a ground for the suspension or
revocation of its corporate franchise or certificate of incorporation.
(19a)
This provision shall not apply if the failure to organize, commence
the transaction of its businesses or the construction of its works,
or to continuously operate is due to causes beyond the control of
the corporation as may be determined by the Securities and
Exchange Commission.
TITLE III
BOARD OF DIRECTORS/TRUSTEES AND OFFICERS
Section 23. The board of directors or trustees. – Unless otherwise
provided in this Code, the corporate powers of all corporations
formed under this Code shall be exercised, all business conducted
and all property of such corporations controlled and held by the
board of directors or trustees to be elected from among the
holders of stocks, or where there is no stock, from among the
members of the corporation, who shall hold office for one (1) year
until their successors are elected and qualified. (28a)
Every director must own at least one (1) share of the capital stock
of the corporation of which he is a director, which share shall
stand in his name on the books of the corporation. Any director
who ceases to be the owner of at least one (1) share of the capital
stock of the corporation of which he is a director shall thereby
cease to be a director. Trustees of non-stock corporations must be
members thereof. A majority of the directors or trustees of all
corporations organized under this Code must be residents of the
Philippines.
Section 24. Election of directors or trustees. – At all elections of
directors or trustees, there must be present, either in person or by
representative authorized to act by written proxy, the owners of a
majority of the outstanding capital stock, or if there be no capital
stock, a majority of the members entitled to vote. The election
must be by ballot if requested by any voting stockholder or
member. In stock corporations, every stockholder entitled to vote
shall have the right to vote in person or by proxy the number of
shares of stock standing, at the time fixed in the by-laws, in his
own name on the stock books of the corporation, or where the by-
laws are silent, at the time of the election; and said stockholder
may vote such number of shares for as many persons as there
are directors to be elected or he may cumulate said shares and
give one candidate as many votes as the number of directors to
be elected multiplied by the number of his shares shall equal, or
he may distribute them on the same principle among as many
candidates as he shall see fit: Provided, That the total number of
votes cast by him shall not exceed the number of shares owned
by him as shown in the books of the corporation multiplied by the
whole number of directors to be elected: Provided, however, That
no delinquent stock shall be voted. Unless otherwise provided in
the articles of incorporation or in the by-laws, members of
corporations which have no capital stock may cast as many votes
as there are trustees to be elected but may not cast more than
one vote for one candidate. Candidates receiving the highest
number of votes shall be declared elected. Any meeting of the
stockholders or members called for an election may adjourn from
day to day or from time to time but not sine die or indefinitely if, for
any reason, no election is held, or if there are not present or
represented by proxy, at the meeting, the owners of a majority of
the outstanding capital stock, or if there be no capital stock, a
majority of the members entitled to vote. (31a)
Section 25. Corporate officers, quorum. – Immediately after their
election, the directors of a corporation must formally organize by
the election of a president, who shall be a director, a treasurer
who may or may not be a director, a secretary who shall be a
resident and citizen of the Philippines, and such other officers as
may be provided for in the by-laws. Any two (2) or more positions
may be held concurrently by the same person, except that no one
shall act as president and secretary or as president and treasurer
at the same time.
The directors or trustees and officers to be elected shall perform
the duties enjoined on them by law and the by-laws of the
corporation. Unless the articles of incorporation or the by-laws
provide for a greater majority, a majority of the number of directors
or trustees as fixed in the articles of incorporation shall constitute
a quorum for the transaction of corporate business, and every
decision of at least a majority of the directors or trustees present
at a meeting at which there is a quorum shall be valid as a
corporate act, except for the election of officers which shall require
the vote of a majority of all the members of the board.
Directors or trustees cannot attend or vote by proxy at board
meetings. (33a)
Section 26. Report of election of directors, trustees and officers. –
Within thirty (30) days after the election of the directors, trustees
and officers of the corporation, the secretary, or any other officer
of the corporation, shall submit to the Securities and Exchange
Commission, the names, nationalities and residences of the
directors, trustees, and officers elected. Should a director, trustee
or officer die, resign or in any manner cease to hold office, his
heirs in case of his death, the secretary, or any other officer of the
corporation, or the director, trustee or officer himself, shall
immediately report such fact to the Securities and Exchange
Commission. (n)
Section 27. Disqualification of directors, trustees or officers. – No
person convicted by final judgment of an offense punishable by
imprisonment for a period exceeding six (6) years, or a violation of
this Code committed within five (5) years prior to the date of his
election or appointment, shall qualify as a director, trustee or
officer of any corporation. (n)
Section 28. Removal of directors or trustees. – Any director or
trustee of a corporation may be removed from office by a vote of
the stockholders holding or representing at least two-thirds (2/3) of
the outstanding capital stock, or if the corporation be a non-stock
corporation, by a vote of at least two-thirds (2/3) of the members
entitled to vote: Provided, That such removal shall take place
either at a regular meeting of the corporation or at a special
meeting called for the purpose, and in either case, after previous
notice to stockholders or members of the corporation of the
intention to propose such removal at the meeting. A special
meeting of the stockholders or members of a corporation for the
purpose of removal of directors or trustees, or any of them, must
be called by the secretary on order of the president or on the
written demand of the stockholders representing or holding at
least a majority of the outstanding capital stock, or, if it be a non-
stock corporation, on the written demand of a majority of the
members entitled to vote. Should the secretary fail or refuse to call
the special meeting upon such demand or fail or refuse to give the
notice, or if there is no secretary, the call for the meeting may be
addressed directly to the stockholders or members by any
stockholder or member of the corporation signing the demand.
Notice of the time and place of such meeting, as well as of the
intention to propose such removal, must be given by publication or
by written notice prescribed in this Code. Removal may be with or
without cause: Provided, That removal without cause may not be
used to deprive minority stockholders or members of the right of
representation to which they may be entitled under Section 24 of
this Code. (n)
Section 29. Vacancies in the office of director or trustee. – Any
vacancy occurring in the board of directors or trustees other than
by removal by the stockholders or members or by expiration of
term, may be filled by the vote of at least a majority of the
remaining directors or trustees, if still constituting a quorum;
otherwise, said vacancies must be filled by the stockholders in a
regular or special meeting called for that purpose. A director or
trustee so elected to fill a vacancy shall be elected only or the
unexpired term of his predecessor in office.
Any directorship or trusteeship to be filled by reason of an
increase in the number of directors or trustees shall be filled only
by an election at a regular or at a special meeting of stockholders
or members duly called for the purpose, or in the same meeting
authorizing the increase of directors or trustees if so stated in the
notice of the meeting. (n)
Section 30. Compensation of directors. – In the absence of any
provision in the by-laws fixing their compensation, the directors
shall not receive any compensation, as such directors, except for
reasonable per diems: Provided, however, That any such
compensation other than per diems may be granted to directors
by the vote of the stockholders representing at least a majority of
the outstanding capital stock at a regular or special stockholders’
meeting. In no case shall the total yearly compensation of
directors, as such directors, exceed ten (10%) percent of the net
income before income tax of the corporation during the preceding
year. (n)
Section 31. Liability of directors, trustees or officers. - Directors or
trustees who willfully and knowingly vote for or assent to patently
unlawful acts of the corporation or who are guilty of gross
negligence or bad faith in directing the affairs of the corporation or
acquire any personal or pecuniary interest in conflict with their
duty as such directors or trustees shall be liable jointly and
severally for all damages resulting therefrom suffered by the
corporation, its stockholders or members and other persons.
When a director, trustee or officer attempts to acquire or acquire,
in violation of his duty, any interest adverse to the corporation in
respect of any matter which has been reposed in him in
confidence, as to which equity imposes a disability upon him to
deal in his own behalf, he shall be liable as a trustee for the
corporation and must account for the profits which otherwise
would have accrued to the corporation. (n)
Section 32. Dealings of directors, trustees or officers with the
corporation. – A contract of the corporation with one or more of its
directors or trustees or officers is voidable, at the option of such
corporation, unless all the following conditions are present:
1. That the presence of such director or trustee in the board
meeting in which the contract was approved was not
necessary to constitute a quorum for such meeting;
2. That the vote of such director or trustee was not
necessary for the approval of the contract;
3. That the contract is fair and reasonable under the
circumstances; and
4. That in case of an officer, the contract has been
previously authorized by the board of directors.
Where any of the first two conditions set forth in the
preceding paragraph is absent, in the case of a contract with
a director or trustee, such contract may be ratified by the
vote of the stockholders representing at least two-thirds (2/3)
of the outstanding capital stock or of at least two-thirds (2/3)
of the members in a meeting called for the purpose:
Provided, That full disclosure of the adverse interest of the
directors or trustees involved is made at such meeting:
Provided, however, That the contract is fair and reasonable
under the circumstances. (n)
Section 33. Contracts between corporations with interlocking
directors. – Except in cases of fraud, and provided the contract is
fair and reasonable under the circumstances, a contract between
two or more corporations having interlocking directors shall not be
invalidated on that ground alone: Provided, That if the interest of
the interlocking director in one corporation is substantial and his
interest in the other corporation or corporations is merely nominal,
he shall be subject to the provisions of the preceding section
insofar as the latter corporation or corporations are concerned.
Stockholdings exceeding twenty (20%) percent of the outstanding
capital stock shall be considered substantial for purposes of
interlocking directors. (n)
Section 34. Disloyalty of a director. – Where a director, by virtue
of his office, acquires for himself a business opportunity which
should belong to the corporation, thereby obtaining profits to the
prejudice of such corporation, he must account to the latter for all
such profits by refunding the same, unless his act has been
ratified by a vote of the stockholders owning or representing at
least two-thirds (2/3) of the outstanding capital stock. This
provision shall be applicable, notwithstanding the fact that the
director risked his own funds in the venture. (n)
Section 35. Executive committee. – The by-laws of a corporation
may create an executive committee, composed of not less than
three members of the board, to be appointed by the board. Said
committee may act, by majority vote of all its members, on such
specific matters within the competence of the board, as may be
delegated to it in the by-laws or on a majority vote of the board,
except with respect to: (1) approval of any action for which
shareholders’ approval is also required; (2) the filing of vacancies
in the board; (3) the amendment or repeal of by-laws or the
adoption of new by-laws; (4) the amendment or repeal of any
resolution of the board which by its express terms is not so
amendable or repealable; and (5) a distribution of cash dividends
to the shareholders.
TITLE IV
POWERS OF CORPORATIONS
Section 36. Corporate powers and capacity. – Every corporation
incorporated under this Code has the power and capacity:
1. To sue and be sued in its corporate name;
2. Of succession by its corporate name for the period of time
stated in the articles of incorporation and the certificate of
incorporation;
3. To adopt and use a corporate seal;
4. To amend its articles of incorporation in accordance with
the provisions of this Code;
5. To adopt by-laws, not contrary to law, morals, or public
policy, and to amend or repeal the same in accordance with
this Code;
6. In case of stock corporations, to issue or sell stocks to
subscribers and to sell stocks to subscribers and to sell
treasury stocks in accordance with the provisions of this
Code; and to admit members to the corporation if it be a
non-stock corporation;
7. To purchase, receive, take or grant, hold, convey, sell,
lease, pledge, mortgage and otherwise deal with such real
and personal property, including securities and bonds of
other corporations, as the transaction of the lawful business
of the corporation may reasonably and necessarily require,
subject to the limitations prescribed by law and the
Constitution;
8. To enter into merger or consolidation with other
corporations as provided in this Code;
9. To make reasonable donations, including those for the
public welfare or for hospital, charitable, cultural, scientific,
civic, or similar purposes: Provided, That no corporation,
domestic or foreign, shall give donations in aid of any
political party or candidate or for purposes of partisan
political activity;
10. To establish pension, retirement, and other plans for the
benefit of its directors, trustees, officers and employees; and
11. To exercise such other powers as may be essential or
necessary to carry out its purpose or purposes as stated in
the articles of incorporation. (13a)
Section 37. Power to extend or shorten corporate term. – A
private corporation may extend or shorten its term as stated in the
articles of incorporation when approved by a majority vote of the
board of directors or trustees and ratified at a meeting by the
stockholders representing at least two-thirds (2/3) of the
outstanding capital stock or by at least two-thirds (2/3) of the
members in case of non-stock corporations. Written notice of the
proposed action and of the time and place of the meeting shall be
addressed to each stockholder or member at his place of
residence as shown on the books of the corporation and
deposited to the addressee in the post office with postage prepaid,
or served personally: Provided, That in case of extension of
corporate term, any dissenting stockholder may exercise his
appraisal right under the conditions provided in this code. (n)
Section 38. Power to increase or decrease capital stock; incur,
create or increase bonded indebtedness. – No corporation shall
increase or decrease its capital stock or incur, create or increase
any bonded indebtedness unless approved by a majority vote of
the board of directors and, at a stockholder’s meeting duly called
for the purpose, two-thirds (2/3) of the outstanding capital stock
shall favor the increase or diminution of the capital stock, or the
incurring, creating or increasing of any bonded indebtedness.
Written notice of the proposed increase or diminution of the capital
stock or of the incurring, creating, or increasing of any bonded
indebtedness and of the time and place of the stockholder’s
meeting at which the proposed increase or diminution of the
capital stock or the incurring or increasing of any bonded
indebtedness is to be considered, must be addressed to each
stockholder at his place of residence as shown on the books of
the corporation and deposited to the addressee in the post office
with postage prepaid, or served personally.
A certificate in duplicate must be signed by a majority of the
directors of the corporation and countersigned by the chairman
and the secretary of the stockholders’ meeting, setting forth:
(1) That the requirements of this section have been
complied with;
(2) The amount of the increase or diminution of the capital
stock;
(3) If an increase of the capital stock, the amount of capital
stock or number of shares of no-par stock thereof actually
subscribed, the names, nationalities and residences of the
persons subscribing, the amount of capital stock or number
of no-par stock subscribed by each, and the amount paid
by each on his subscription in cash or property, or the
amount of capital stock or number of shares of no-par
stock allotted to each stock-holder if such increase is for
the purpose of making effective stock dividend therefor
authorized;
(4) Any bonded indebtedness to be incurred, created or
increased;
(5) The actual indebtedness of the corporation on the day
of the meeting;
(6) The amount of stock represented at the meeting; and
(7) The vote authorizing the increase or diminution of the
capital stock, or the incurring, creating or increasing of any
bonded indebtedness.
Any increase or decrease in the capital stock or the
incurring, creating or increasing of any bonded
indebtedness shall require prior approval of the Securities
and Exchange Commission.
One of the duplicate certificates shall be kept on file in the
office of the corporation and the other shall be filed with
the Securities and Exchange Commission and attached to
the original articles of incorporation. From and after
approval by the Securities and Exchange Commission and
the issuance by the Commission of its certificate of filing,
the capital stock shall stand increased or decreased and
the incurring, creating or increasing of any bonded
indebtedness authorized, as the certificate of filing may
declare: Provided, That the Securities and Exchange
Commission shall not accept for filing any certificate of
increase of capital stock unless accompanied by the sworn
statement of the treasurer of the corporation lawfully
holding office at the time of the filing of the certificate,
showing that at least twenty-five (25%) percent of such
increased capital stock has been subscribed and that at
least twenty-five (25%) percent of the amount subscribed
has been paid either in actual cash to the corporation or
that there has been transferred to the corporation property
the valuation of which is equal to twenty-five (25%) percent
of the subscription: Provided, further, That no decrease of
the capital stock shall be approved by the Commission if its
effect shall prejudice the rights of corporate creditors.
Non-stock corporations may incur or create bonded
indebtedness, or increase the same, with the approval by a
majority vote of the board of trustees and of at least two-
thirds (2/3) of the members in a meeting duly called for the
purpose.
Bonds issued by a corporation shall be registered with the
Securities and Exchange Commission, which shall have
the authority to determine the sufficiency of the terms
thereof. (17a)
Section 39. Power to deny pre-emptive right. – All stockholders of
a stock corporation shall enjoy pre-emptive right to subscribe to all
issues or disposition of shares of any class, in proportion to their
respective shareholdings, unless such right is denied by the
articles of incorporation or an amendment thereto: Provided, That
such pre-emptive right shall not extend to shares to be issued in
compliance with laws requiring stock offerings or minimum stock
ownership by the public; or to shares to be issued in good faith
with the approval of the stockholders representing two-thirds (2/3)
of the outstanding capital stock, in exchange for property needed
for corporate purposes or in payment of a previously contracted
debt.
Section 40. Sale or other disposition of assets. – Subject to the
provisions of existing laws on illegal combinations and
monopolies, a corporation may, by a majority vote of its board of
directors or trustees, sell, lease, exchange, mortgage, pledge or
otherwise dispose of all or substantially all of its property and
assets, including its goodwill, upon such terms and conditions and
for such consideration, which may be money, stocks, bonds or
other instruments for the payment of money or other property or
consideration, as its board of directors or trustees may deem
expedient, when authorized by the vote of the stockholders
representing at least two-thirds (2/3) of the outstanding capital
stock, or in case of non-stock corporation, by the vote of at least to
two-thirds (2/3) of the members, in a stockholder’s or member’s
meeting duly called for the purpose. Written notice of the
proposed action and of the time and place of the meeting shall be
addressed to each stockholder or member at his place of
residence as shown on the books of the corporation and
deposited to the addressee in the post office with postage prepaid,
or served personally: Provided, That any dissenting stockholder
may exercise his appraisal right under the conditions provided in
this Code.
A sale or other disposition shall be deemed to cover substantially
all the corporate property and assets if thereby the corporation
would be rendered incapable of continuing the business or
accomplishing the purpose for which it was incorporated.
After such authorization or approval by the stockholders or
members, the board of directors or trustees may, nevertheless, in
its discretion, abandon such sale, lease, exchange, mortgage,
pledge or other disposition of property and assets, subject to the
rights of third parties under any contract relating thereto, without
further action or approval by the stockholders or members.
Nothing in this section is intended to restrict the power of any
corporation, without the authorization by the stockholders or
members, to sell, lease, exchange, mortgage, pledge or otherwise
dispose of any of its property and assets if the same is necessary
in the usual and regular course of business of said corporation or
if the proceeds of the sale or other disposition of such property
and assets be appropriated for the conduct of its remaining
business.
In non-stock corporations where there are no members with voting
rights, the vote of at least a majority of the trustees in office will be
sufficient authorization for the corporation to enter into any
transaction authorized by this section.
Section 41. Power to acquire own shares. – A stock corporation
shall have the power to purchase or acquire its own shares for a
legitimate corporate purpose or purposes, including but not limited
to the following cases: Provided, That the corporation has
unrestricted retained earnings in its books to cover the shares to
be purchased or acquired:
1. To eliminate fractional shares arising out of stock dividends;
2. To collect or compromise an indebtedness to the
corporation, arising out of unpaid subscription, in a
delinquency sale, and to purchase delinquent shares sold
during said sale; and
3. To pay dissenting or withdrawing stockholders entitled to
payment for their shares under the provisions of this Code. (a)
Section 42. Power to invest corporate funds in another
corporation or business or for any other purpose. – Subject to the
provisions of this Code, a private corporation may invest its funds
in any other corporation or business or for any purpose other than
the primary purpose for which it was organized when approved by
a majority of the board of directors or trustees and ratified by the
stockholders representing at least two-thirds (2/3) of the
outstanding capital stock, or by at least two thirds (2/3) of the
members in the case of non-stock corporations, at a stockholder’s
or member’s meeting duly called for the purpose. Written notice of
the proposed investment and the time and place of the meeting
shall be addressed to each stockholder or member at his place of
residence as shown on the books of the corporation and
deposited to the addressee in the post office with postage prepaid,
or served personally: Provided, That any dissenting stockholder
shall have appraisal right as provided in this Code: Provided,
however, That where the investment by the corporation is
reasonably necessary to accomplish its primary purpose as stated
in the articles of incorporation, the approval of the stockholders or
members shall not be necessary. (17 1/2a)
Section 43. Power to declare dividends. - The board of directors
of a stock corporation may declare dividends out of the
unrestricted retained earnings which shall be payable in cash, in
property, or in stock to all stockholders on the basis of outstanding
stock held by them: Provided, That any cash dividends due on
delinquent stock shall first be applied to the unpaid balance on the
subscription plus costs and expenses, while stock dividends shall
be withheld from the delinquent stockholder until his unpaid
subscription is fully paid: Provided, further, That no stock dividend
shall be issued without the approval of stockholders representing
not less than two-thirds (2/3) of the outstanding capital stock at a
regular or special meeting duly called for the purpose. (16a)
Stock corporations are prohibited from retaining surplus profits in
excess of one hundred (100%) percent of their paid-in capital
stock, except: (1) when justified by definite corporate expansion
projects or programs approved by the board of directors; or (2)
when the corporation is prohibited under any loan agreement with
any financial institution or creditor, whether local or foreign, from
declaring dividends without its/his consent, and such consent has
not yet been secured; or (3) when it can be clearly shown that
such retention is necessary under special circumstances obtaining
in the corporation, such as when there is need for special reserve
for probable contingencies. (n)
Section 44. Power to enter into management contract. – No
corporation shall conclude a management contract with another
corporation unless such contract shall have been approved by the
board of directors and by stockholders owning at least the majority
of the outstanding capital stock, or by at least a majority of the
members in the case of a non-stock corporation, of both the
managing and the managed corporation, at a meeting duly called
for the purpose: Provided, That (1) where a stockholder or
stockholders representing the same interest of both the managing
and the managed corporations own or control more than one-third
(1/3) of the total outstanding capital stock entitled to vote of the
managing corporation; or (2) where a majority of the members of
the board of directors of the managing corporation also constitute
a majority of the members of the board of directors of the
managed corporation, then the management contract must be
approved by the stockholders of the managed corporation owning
at least two-thirds (2/3) of the total outstanding capital stock
entitled to vote, or by at least two-thirds (2/3) of the members in
the case of a non-stock corporation. No management contract
shall be entered into for a period longer than five years for any
one term.
The provisions of the next preceding paragraph shall apply to any
contract whereby a corporation undertakes to manage or operate
all or substantially all of the business of another corporation,
whether such contracts are called service contracts, operating
agreements or otherwise: Provided, however, That such service
contracts or operating agreements which relate to the exploration,
development, exploitation or utilization of natural resources may
be entered into for such periods as may be provided by the
pertinent laws or regulations. (n)
Section 45. Ultra vires acts of corporations. – No corporation
under this Code shall possess or exercise any corporate powers
except those conferred by this Code or by its articles of
incorporation and except such as are necessary or incidental to
the exercise of the powers so conferred. (n)
TITLE V
BY LAWS
Section 46. Adoption of by-laws. – Every corporation formed
under this Code must, within one (1) month after receipt of official
notice of the issuance of its certificate of incorporation by the
Securities and Exchange Commission, adopt a code of by-laws for
its government not inconsistent with this Code. For the adoption of
by-laws by the corporation the affirmative vote of the stockholders
representing at least a majority of the outstanding capital stock, or
of at least a majority of the members in case of non-stock
corporations, shall be necessary. The by-laws shall be signed by
the stockholders or members voting for them and shall be kept in
the principal office of the corporation, subject to the inspection of
the stockholders or members during office hours. A copy thereof,
duly certified to by a majority of the directors or trustees
countersigned by the secretary of the corporation, shall be filed
with the Securities and Exchange Commission which shall be
attached to the original articles of incorporation.
Notwithstanding the provisions of the preceding paragraph, by-
laws may be adopted and filed prior to incorporation; in such case,
such by-laws shall be approved and signed by all the
incorporators and submitted to the Securities and Exchange
Commission, together with the articles of incorporation.
In all cases, by-laws shall be effective only upon the issuance by
the Securities and Exchange Commission of a certification that the
by-laws are not inconsistent with this Code.
The Securities and Exchange Commission shall not accept for
filing the by-laws or any amendment thereto of any bank, banking
institution, building and loan association, trust company, insurance
company, public utility, educational institution or other special
corporations governed by special laws, unless accompanied by a
certificate of the appropriate government agency to the effect that
such by-laws or amendments are in accordance with law. (20a)
Section 47. Contents of by-laws. – Subject to the provisions of the
Constitution, this Code, other special laws, and the articles of
incorporation, a private corporation may provide in its by-laws for:
1. The time, place and manner of calling and conducting
regular or special meetings of the directors or trustees;
2. The time and manner of calling and conducting regular or
special meetings of the stockholders or members;
3. The required quorum in meetings of stockholders or
members and the manner of voting therein;
4. The form for proxies of stockholders and members and
the manner of voting them;
5. The qualifications, duties and compensation of directors or
trustees, officers and employees;
6. The time for holding the annual election of directors of
trustees and the mode or manner of giving notice thereof;
7. The manner of election or appointment and the term of
office of all officers other than directors or trustees;
8. The penalties for violation of the by-laws;
9. In the case of stock corporations, the manner of issuing
stock certificates; and
10. Such other matters as may be necessary for the proper
or convenient transaction of its corporate business and
affairs. (21a)
Section 48. Amendments to by-laws. – The board of directors or
trustees, by a majority vote thereof, and the owners of at least a
majority of the outstanding capital stock, or at least a majority of
the members of a non-stock corporation, at a regular or special
meeting duly called for the purpose, may amend or repeal any by-
laws or adopt new by-laws. The owners of two-thirds (2/3) of the
outstanding capital stock or two-thirds (2/3) of the members in a
non-stock corporation may delegate to the board of directors or
trustees the power to amend or repeal any by-laws or adopt new
by-laws: Provided, That any power delegated to the board of
directors or trustees to amend or repeal any by-laws or adopt new
by-laws shall be considered as revoked whenever stockholders
owning or representing a majority of the outstanding capital stock
or a majority of the members in non-stock corporations, shall so
vote at a regular or special meeting.
Whenever any amendment or new by-laws are adopted, such
amendment or new by-laws shall be attached to the original by-
laws in the office of the corporation, and a copy thereof, duly
certified under oath by the corporate secretary and a majority of
the directors or trustees, shall be filed with the Securities and
Exchange Commission the same to be attached to the original
articles of incorporation and original by-laws.
The amended or new by-laws shall only be effective upon the
issuance by the Securities and Exchange Commission of a
certification that the same are not inconsistent with this Code.
(22a and 23a)
TITLE VI
MEETINGS
Section 49. Kinds of meetings. – Meetings of directors, trustees,
stockholders, or members may be regular or special. (n)
Section 50. Regular and special meetings of stockholders or
members. - Regular meetings of stockholders or members shall
be held annually on a date fixed in the by-laws, or if not so fixed,
on any date in April of every year as determined by the board of
directors or trustees: Provided, That written notice of regular
meetings shall be sent to all stockholders or members of record at
least two (2) weeks prior to the meeting, unless a different period
is required by the by-laws.
Special meetings of stockholders or members shall be held at any
time deemed necessary or as provided in the by-laws: Provided,
however, That at least one (1) week written notice shall be sent to
all stockholders or members, unless otherwise provided in the by-
laws.
Notice of any meeting may be waived, expressly or impliedly, by
any stockholder or member.
Whenever, for any cause, there is no person authorized to call a
meeting, the Securities and Exchange Commission, upon petition
of a stockholder or member on a showing of good cause therefor,
may issue an order to the petitioning stockholder or member
directing him to call a meeting of the corporation by giving proper
notice required by this Code or by the by-laws. The petitioning
stockholder or member shall preside thereat until at least a
majority of the stockholders or members present have chosen one
of their number as presiding officer. (24, 26)
Section 51. Place and time of meetings of stockholders of
members. – Stockholder’s or member’s meetings, whether regular
or special, shall be held in the city or municipality where the
principal office of the corporation is located, and if practicable in
the principal office of the corporation: Provided, That Metro Manila
shall, for purposes of this section, be considered a city or
municipality.
Notice of meetings shall be in writing, and the time and place
thereof stated therein.
All proceedings had and any business transacted at any meeting
of the stockholders or members, if within the powers or authority
of the corporation, shall be valid even if the meeting be improperly
held or called, provided all the stockholders or members of the
corporation are present or duly represented at the meeting. (24
and 25)
Section 52. Quorum in meetings. – Unless otherwise provided for
in this Code or in the by-laws, a quorum shall consist of the
stockholders representing a majority of the outstanding capital
stock or a majority of the members in the case of non-stock
corporations. (n)
Section 53. Regular and special meetings of directors or
trustees. – Regular meetings of the board of directors or trustees
of every corporation shall be held monthly, unless the by-laws
provide otherwise.
Special meetings of the board of directors or trustees may be held
at any time upon the call of the president or as provided in the by-
laws.
Meetings of directors or trustees of corporations may be held
anywhere in or outside of the Philippines, unless the by-laws
provide otherwise. Notice of regular or special meetings stating
the date, time and place of the meeting must be sent to every
director or trustee at least one (1) day prior to the scheduled
meeting, unless otherwise provided by the by-laws. A director or
trustee may waive this requirement, either expressly or impliedly.
(n)
Section 54. Who shall preside at meetings. – The president shall
preside at all meetings of the directors or trustee as well as of the
stockholders or members, unless the by-laws provide otherwise.
(n)
Section 55. Right to vote of pledgors, mortgagors, and
administrators. – In case of pledged or mortgaged shares in stock
corporations, the pledgor or mortgagor shall have the right to
attend and vote at meetings of stockholders, unless the pledgee
or mortgagee is expressly given by the pledgor or mortgagor such
right in writing which is recorded on the appropriate corporate
books. (n)
Executors, administrators, receivers, and other legal
representatives duly appointed by the court may attend and vote
in behalf of the stockholders or members without need of any
written proxy. (27a)
Section 56. Voting in case of joint ownership of stock. – In case of
shares of stock owned jointly by two or more persons, in order to
vote the same, the consent of all the co-owners shall be
necessary, unless there is a written proxy, signed by all the co-
owners, authorizing one or some of them or any other person to
vote such share or shares: Provided, That when the shares are
owned in an "and/or" capacity by the holders thereof, any one of
the joint owners can vote said shares or appoint a proxy therefor.
(n)
Section 57. Voting right for treasury shares. – Treasury shares
shall have no voting right as long as such shares remain in the
Treasury. (n)
Section 58. Proxies. – Stockholders and members may vote in
person or by proxy in all meetings of stockholders or members.
Proxies shall in writing, signed by the stockholder or member and
filed before the scheduled meeting with the corporate secretary.
Unless otherwise provided in the proxy, it shall be valid only for
the meeting for which it is intended. No proxy shall be valid and
effective for a period longer than five (5) years at any one time. (n)
Section 59. Voting trusts. – One or more stockholders of a stock
corporation may create a voting trust for the purpose of conferring
upon a trustee or trustees the right to vote and other rights
pertaining to the shares for a period not exceeding five (5) years
at any time: Provided, That in the case of a voting trust specifically
required as a condition in a loan agreement, said voting trust may
be for a period exceeding five (5) years but shall automatically
expire upon full payment of the loan. A voting trust agreement
must be in writing and notarized, and shall specify the terms and
conditions thereof. A certified copy of such agreement shall be
filed with the corporation and with the Securities and Exchange
Commission; otherwise, said agreement is ineffective and
unenforceable. The certificate or certificates of stock covered by
the voting trust agreement shall be cancelled and new ones shall
be issued in the name of the trustee or trustees stating that they
are issued pursuant to said agreement. In the books of the
corporation, it shall be noted that the transfer in the name of the
trustee or trustees is made pursuant to said voting trust
agreement.
The trustee or trustees shall execute and deliver to the transferors
voting trust certificates, which shall be transferable in the same
manner and with the same effect as certificates of stock.
The voting trust agreement filed with the corporation shall be
subject to examination by any stockholder of the corporation in the
same manner as any other corporate book or record: Provided,
That both the transferor and the trustee or trustees may exercise
the right of inspection of all corporate books and records in
accordance with the provisions of this Code.
Any other stockholder may transfer his shares to the same trustee
or trustees upon the terms and conditions stated in the voting trust
agreement, and thereupon shall be bound by all the provisions of
said agreement.
No voting trust agreement shall be entered into for the purpose of
circumventing the law against monopolies and illegal
combinations in restraint of trade or used for purposes of fraud.
Unless expressly renewed, all rights granted in a voting trust
agreement shall automatically expire at the end of the agreed
period, and the voting trust certificates as well as the certificates of
stock in the name of the trustee or trustees shall thereby be
deemed cancelled and new certificates of stock shall be reissued
in the name of the transferors.
The voting trustee or trustees may vote by proxy unless the
agreement provides otherwise. (36a)
TITLE VII
STOCKS AND STOCKHOLDERS
Section 60. Subscription contract. – Any contract for the
acquisition of unissued stock in an existing corporation or a
corporation still to be formed shall be deemed a subscription
within the meaning of this Title, notwithstanding the fact that the
parties refer to it as a purchase or some other contract. (n)
Section 61. Pre-incorporation subscription. – A subscription for
shares of stock of a corporation still to be formed shall be
irrevocable for a period of at least six (6) months from the date of
subscription, unless all of the other subscribers consent to the
revocation, or unless the incorporation of said corporation fails to
materialize within said period or within a longer period as may be
stipulated in the contract of subscription: Provided, That no pre-
incorporation subscription may be revoked after the submission of
the articles of incorporation to the Securities and Exchange
Commission. (n)
Section 62. Consideration for stocks. – Stocks shall not be issued
for a consideration less than the par or issued price thereof.
Consideration for the issuance of stock may be any or a
combination of any two or more of the following:
1. Actual cash paid to the corporation;
2. Property, tangible or intangible, actually received by the
corporation and necessary or convenient for its use and
lawful purposes at a fair valuation equal to the par or issued
value of the stock issued;
3. Labor performed for or services actually rendered to the
corporation;
4. Previously incurred indebtedness of the corporation;
5. Amounts transferred from unrestricted retained earnings
to stated capital; and
6. Outstanding shares exchanged for stocks in the event of
reclassification or conversion.
Where the consideration is other than actual cash, or
consists of intangible property such as patents of copyrights,
the valuation thereof shall initially be determined by the
incorporators or the board of directors, subject to approval
by the Securities and Exchange Commission.
Shares of stock shall not be issued in exchange for
promissory notes or future service.
The same considerations provided for in this section, insofar
as they may be applicable, may be used for the issuance of
bonds by the corporation.
The issued price of no-par value shares may be fixed in the
articles of incorporation or by the board of directors pursuant
to authority conferred upon it by the articles of incorporation
or the by-laws, or in the absence thereof, by the
stockholders representing at least a majority of the
outstanding capital stock at a meeting duly called for the
purpose. (5 and 16)
Section 63. Certificate of stock and transfer of shares. – The
capital stock of stock corporations shall be divided into shares for
which certificates signed by the president or vice president,
countersigned by the secretary or assistant secretary, and sealed
with the seal of the corporation shall be issued in accordance with
the by-laws. Shares of stock so issued are personal property and
may be transferred by delivery of the certificate or certificates
indorsed by the owner or his attorney-in-fact or other person
legally authorized to make the transfer. No transfer, however, shall
be valid, except as between the parties, until the transfer is
recorded in the books of the corporation showing the names of the
parties to the transaction, the date of the transfer, the number of
the certificate or certificates and the number of shares transferred.
No shares of stock against which the corporation holds any unpaid
claim shall be transferable in the books of the corporation. (35)
Section 64. Issuance of stock certificates. – No certificate of stock
shall be issued to a subscriber until the full amount of his
subscription together with interest and expenses (in case of
delinquent shares), if any is due, has been paid. (37)
Section 65. Liability of directors for watered stocks. – Any director
or officer of a corporation consenting to the issuance of stocks for
a consideration less than its par or issued value or for a
consideration in any form other than cash, valued in excess of its
fair value, or who, having knowledge thereof, does not forthwith
express his objection in writing and file the same with the
corporate secretary, shall be solidarily, liable with the stockholder
concerned to the corporation and its creditors for the difference
between the fair value received at the time of issuance of the
stock and the par or issued value of the same. (n)
Section 66. Interest on unpaid subscriptions. – Subscribers for
stock shall pay to the corporation interest on all unpaid
subscriptions from the date of subscription, if so required by, and
at the rate of interest fixed in the by-laws. If no rate of interest is
fixed in the by-laws, such rate shall be deemed to be the legal
rate. (37)
Section 67. Payment of balance of subscription. – Subject to the
provisions of the contract of subscription, the board of directors of
any stock corporation may at any time declare due and payable to
the corporation unpaid subscriptions to the capital stock and may
collect the same or such percentage thereof, in either case with
accrued interest, if any, as it may deem necessary.
Payment of any unpaid subscription or any percentage thereof,
together with the interest accrued, if any, shall be made on the
date specified in the contract of subscription or on the date stated
in the call made by the board. Failure to pay on such date shall
render the entire balance due and payable and shall make the
stockholder liable for interest at the legal rate on such balance,
unless a different rate of interest is provided in the by-laws,
computed from such date until full payment. If within thirty (30)
days from the said date no payment is made, all stocks covered
by said subscription shall thereupon become delinquent and shall
be subject to sale as hereinafter provided, unless the board of
directors orders otherwise. (38)
Section 68. Delinquency sale. – The board of directors may, by
resolution, order the sale of delinquent stock and shall specifically
state the amount due on each subscription plus all accrued
interest, and the date, time and place of the sale which shall not
be less than thirty (30) days nor more than sixty (60) days from
the date the stocks become delinquent.
Notice of said sale, with a copy of the resolution, shall be sent to
every delinquent stockholder either personally or by registered
mail. The same shall furthermore be published once a week for
two (2) consecutive weeks in a newspaper of general circulation in
the province or city where the principal office of the corporation is
located.
Unless the delinquent stockholder pays to the corporation, on or
before the date specified for the sale of the delinquent stock, the
balance due on his subscription, plus accrued interest, costs of
advertisement and expenses of sale, or unless the board of
directors otherwise orders, said delinquent stock shall be sold at
public auction to such bidder who shall offer to pay the full amount
of the balance on the subscription together with accrued interest,
costs of advertisement and expenses of sale, for the smallest
number of shares or fraction of a share. The stock so purchased
shall be transferred to such purchaser in the books of the
corporation and a certificate for such stock shall be issued in his
favor. The remaining shares, if any, shall be credited in favor of
the delinquent stockholder who shall likewise be entitled to the
issuance of a certificate of stock covering such shares.
Should there be no bidder at the public auction who offers to pay
the full amount of the balance on the subscription together with
accrued interest, costs of advertisement and expenses of sale, for
the smallest number of shares or fraction of a share, the
corporation may, subject to the provisions of this Code, bid for the
same, and the total amount due shall be credited as paid in full in
the books of the corporation. Title to all the shares of stock
covered by the subscription shall be vested in the corporation as
treasury shares and may be disposed of by said corporation in
accordance with the provisions of this Code. (39a-46a)
Section 69. When sale may be questioned. – No action to recover
delinquent stock sold can be sustained upon the ground of
irregularity or defect in the notice of sale, or in the sale itself of the
delinquent stock, unless the party seeking to maintain such action
first pays or tenders to the party holding the stock the sum for
which the same was sold, with interest from the date of sale at the
legal rate; and no such action shall be maintained unless it is
commenced by the filing of a complaint within six (6) months from
the date of sale. (47a)
Section 70. Court action to recover unpaid subscription. – Nothing
in this Code shall prevent the corporation from collecting by action
in a court of proper jurisdiction the amount due on any unpaid
subscription, with accrued interest, costs and expenses. (49a)
Section 71. Effect of delinquency. – No delinquent stock shall be
voted for or be entitled to vote or to representation at any
stockholder’s meeting, nor shall the holder thereof be entitled to
any of the rights of a stockholder except the right to dividends in
accordance with the provisions of this Code, until and unless he
pays the amount due on his subscription with accrued interest,
and the costs and expenses of advertisement, if any. (50a)
Section 72. Rights of unpaid shares. – Holders of subscribed
shares not fully paid which are not delinquent shall have all the
rights of a stockholder. (n)
Section 73. Lost or destroyed certificates. – The following
procedure shall be followed for the issuance by a corporation of
new certificates of stock in lieu of those which have been lost,
stolen or destroyed:
1. The registered owner of a certificate of stock in a
corporation or his legal representative shall file with the
corporation an affidavit in triplicate setting forth, if possible,
the circumstances as to how the certificate was lost, stolen
or destroyed, the number of shares represented by such
certificate, the serial number of the certificate and the
name of the corporation which issued the same. He shall
also submit such other information and evidence which he
may deem necessary;
2. After verifying the affidavit and other information and
evidence with the books of the corporation, said
corporation shall publish a notice in a newspaper of
general circulation published in the place where the
corporation has its principal office, once a week for three
(3) consecutive weeks at the expense of the registered
owner of the certificate of stock which has been lost, stolen
or destroyed. The notice shall state the name of said
corporation, the name of the registered owner and the
serial number of said certificate, and the number of shares
represented by such certificate, and that after the
expiration of one (1) year from the date of the last
publication, if no contest has been presented to said
corporation regarding said certificate of stock, the right to
make such contest shall be barred and said corporation
shall cancel in its books the certificate of stock which has
been lost, stolen or destroyed and issue in lieu thereof new
certificate of stock, unless the registered owner files a
bond or other security in lieu thereof as may be required,
effective for a period of one (1) year, for such amount and
in such form and with such sureties as may be satisfactory
to the board of directors, in which case a new certificate
may be issued even before the expiration of the one (1)
year period provided herein: Provided, That if a contest
has been presented to said corporation or if an action is
pending in court regarding the ownership of said certificate
of stock which has been lost, stolen or destroyed, the
issuance of the new certificate of stock in lieu thereof shall
be suspended until the final decision by the court regarding
the ownership of said certificate of stock which has been
lost, stolen or destroyed.
Except in case of fraud, bad faith, or negligence on the
part of the corporation and its officers, no action may be
brought against any corporation which shall have issued
certificate of stock in lieu of those lost, stolen or destroyed
pursuant to the procedure above-described. (R.A. 201a)
TITLE VIII
CORPORATE BOOKS AND RECORDS
Section 74. Books to be kept; stock transfer agent. – Every
corporation shall keep and carefully preserve at its principal office
a record of all business transactions and minutes of all meetings
of stockholders or members, or of the board of directors or
trustees, in which shall be set forth in detail the time and place of
holding the meeting, how authorized, the notice given, whether the
meeting was regular or special, if special its object, those present
and absent, and every act done or ordered done at the meeting.
Upon the demand of any director, trustee, stockholder or member,
the time when any director, trustee, stockholder or member
entered or left the meeting must be noted in the minutes; and on a
similar demand, the yeas and nays must be taken on any motion
or proposition, and a record thereof carefully made. The protest of
any director, trustee, stockholder or member on any action or
proposed action must be recorded in full on his demand.
The records of all business transactions of the corporation and the
minutes of any meetings shall be open to inspection by any
director, trustee, stockholder or member of the corporation at
reasonable hours on business days and he may demand, in
writing, for a copy of excerpts from said records or minutes, at his
expense.
Any officer or agent of the corporation who shall refuse to allow
any director, trustees, stockholder or member of the corporation to
examine and copy excerpts from its records or minutes, in
accordance with the provisions of this Code, shall be liable to such
director, trustee, stockholder or member for damages, and in
addition, shall be guilty of an offense which shall be punishable
under Section 144 of this Code: Provided, That if such refusal is
made pursuant to a resolution or order of the board of directors or
trustees, the liability under this section for such action shall be
imposed upon the directors or trustees who voted for such refusal:
and Provided, further, That it shall be a defense to any action
under this section that the person demanding to examine and
copy excerpts from the corporation’s records and minutes has
improperly used any information secured through any prior
examination of the records or minutes of such corporation or of
any other corporation, or was not acting in good faith or for a
legitimate purpose in making his demand.
Stock corporations must also keep a book to be known as the
"stock and transfer book", in which must be kept a record of all
stocks in the names of the stockholders alphabetically arranged;
the installments paid and unpaid on all stock for which
subscription has been made, and the date of payment of any
installment; a statement of every alienation, sale or transfer of
stock made, the date thereof, and by and to whom made; and
such other entries as the by-laws may prescribe. The stock and
transfer book shall be kept in the principal office of the corporation
or in the office of its stock transfer agent and shall be open for
inspection by any director or stockholder of the corporation at
reasonable hours on business days.
No stock transfer agent or one engaged principally in the business
of registering transfers of stocks in behalf of a stock corporation
shall be allowed to operate in the Philippines unless he secures a
license from the Securities and Exchange Commission and pays a
fee as may be fixed by the Commission, which shall be renewable
annually: Provided, That a stock corporation is not precluded from
performing or making transfer of its own stocks, in which case all
the rules and regulations imposed on stock transfer agents,
except the payment of a license fee herein provided, shall be
applicable. (51a and 32a; P.B. No. 268.)
Section 75. Right to financial statements. – Within ten (10) days
from receipt of a written request of any stockholder or member,
the corporation shall furnish to him its most recent financial
statement, which shall include a balance sheet as of the end of
the last taxable year and a profit or loss statement for said taxable
year, showing in reasonable detail its assets and liabilities and the
result of its operations.
At the regular meeting of stockholders or members, the board of
directors or trustees shall present to such stockholders or
members a financial report of the operations of the corporation for
the preceding year, which shall include financial statements, duly
signed and certified by an independent certified public accountant.
However, if the paid-up capital of the corporation is less
than P50,000.00, the financial statements may be certified under
oath by the treasurer or any responsible officer of the corporation.
(n)
TITLE IX
MERGER AND CONSOLIDATION
Section 76. Plan or merger of consolidation. – Two or more
corporations may merge into a single corporation which shall be
one of the constituent corporations or may consolidate into a new
single corporation which shall be the consolidated corporation.
The board of directors or trustees of each corporation, party to the
merger or consolidation, shall approve a plan of merger or
consolidation setting forth the following:
1. The names of the corporations proposing to merge or
consolidate, hereinafter referred to as the constituent
corporations;
2. The terms of the merger or consolidation and the mode
of carrying the same into effect;
3. A statement of the changes, if any, in the articles of
incorporation of the surviving corporation in case of
merger; and, with respect to the consolidated corporation
in case of consolidation, all the statements required to be
set forth in the articles of incorporation for corporations
organized under this Code; and
4. Such other provisions with respect to the proposed
merger or consolidation as are deemed necessary or
desirable. (n)
Section 77. Stockholder’s or member’s approval. – Upon approval
by majority vote of each of the board of directors or trustees of the
constituent corporations of the plan of merger or consolidation, the
same shall be submitted for approval by the stockholders or
members of each of such corporations at separate corporate
meetings duly called for the purpose. Notice of such meetings
shall be given to all stockholders or members of the respective
corporations, at least two (2) weeks prior to the date of the
meeting, either personally or by registered mail. Said notice shall
state the purpose of the meeting and shall include a copy or a
summary of the plan of merger or consolidation. The affirmative
vote of stockholders representing at least two-thirds (2/3) of the
outstanding capital stock of each corporation in the case of stock
corporations or at least two-thirds (2/3) of the members in the
case of non-stock corporations shall be necessary for the approval
of such plan. Any dissenting stockholder in stock corporations
may exercise his appraisal right in accordance with the Code:
Provided, That if after the approval by the stockholders of such
plan, the board of directors decides to abandon the plan, the
appraisal right shall be extinguished.
Any amendment to the plan of merger or consolidation may be
made, provided such amendment is approved by majority vote of
the respective boards of directors or trustees of all the constituent
corporations and ratified by the affirmative vote of stockholders
representing at least two-thirds (2/3) of the outstanding capital
stock or of two-thirds (2/3) of the members of each of the
constituent corporations. Such plan, together with any
amendment, shall be considered as the agreement of merger or
consolidation. (n)
Section 78. Articles of merger or consolidation. – After the
approval by the stockholders or members as required by the
preceding section, articles of merger or articles of consolidation
shall be executed by each of the constituent corporations, to be
signed by the president or vice-president and certified by the
secretary or assistant secretary of each corporation setting forth:
1. The plan of the merger or the plan of
consolidation;
2. As to stock corporations, the number of shares
outstanding, or in the case of non-stock
corporations, the number of members; and
3. As to each corporation, the number of shares or
members voting for and against such plan,
respectively. (n)
Section 79. Effectivity of merger or consolidation. – The articles of
merger or of consolidation, signed and certified as herein above
required, shall be submitted to the Securities and Exchange
Commission in quadruplicate for its approval: Provided, That in
the case of merger or consolidation of banks or banking
institutions, building and loan associations, trust companies,
insurance companies, public utilities, educational institutions and
other special corporations governed by special laws, the favorable
recommendation of the appropriate government agency shall first
be obtained. If the Commission is satisfied that the merger or
consolidation of the corporations concerned is not inconsistent
with the provisions of this Code and existing laws, it shall issue a
certificate of merger or of consolidation, at which time the merger
or consolidation shall be effective.
If, upon investigation, the Securities and Exchange Commission
has reason to believe that the proposed merger or consolidation is
contrary to or inconsistent with the provisions of this Code or
existing laws, it shall set a hearing to give the corporations
concerned the opportunity to be heard. Written notice of the date,
time and place of hearing shall be given to each constituent
corporation at least two (2) weeks before said hearing. The
Commission shall thereafter proceed as provided in this Code. (n)
Section 80. Effects of merger or consolidation. – The merger or
consolidation shall have the following effects:
1. The constituent corporations shall become a single
corporation which, in case of merger, shall be the surviving
corporation designated in the plan of merger; and, in case of
consolidation, shall be the consolidated corporation
designated in the plan of consolidation;
2. The separate existence of the constituent corporations
shall cease, except that of the surviving or the consolidated
corporation;
3. The surviving or the consolidated corporation shall
possess all the rights, privileges, immunities and powers and
shall be subject to all the duties and liabilities of a
corporation organized under this Code;
4. The surviving or the consolidated corporation shall
thereupon and thereafter possess all the rights, privileges,
immunities and franchises of each of the constituent
corporations; and all property, real or personal, and all
receivables due on whatever account, including
subscriptions to shares and other choses in action, and all
and every other interest of, or belonging to, or due to each
constituent corporation, shall be deemed transferred to and
vested in such surviving or consolidated corporation without
further act or deed; and
5. The surviving or consolidated corporation shall be
responsible and liable for all the liabilities and obligations of
each of the constituent corporations in the same manner as
if such surviving or consolidated corporation had itself
incurred such liabilities or obligations; and any pending
claim, action or proceeding brought by or against any of
such constituent corporations may be prosecuted by or
against the surviving or consolidated corporation. The rights
of creditors or liens upon the property of any of such
constituent corporations shall not be impaired by such
merger or consolidation. (n)
TITLE X
APPRAISAL RIGHT
Section 81. Instances of appraisal right. – Any stockholder of a
corporation shall have the right to dissent and demand payment of
the fair value of his shares in the following instances:
1. In case any amendment to the articles of
incorporation has the effect of changing or
restricting the rights of any stockholder or class of
shares, or of authorizing preferences in any respect
superior to those of outstanding shares of any
class, or of extending or shortening the term of
corporate existence;
2. In case of sale, lease, exchange, transfer,
mortgage, pledge or other disposition of all or
substantially all of the corporate property and
assets as provided in the Code; and
3. In case of merger or consolidation. (n)
Section 82. How right is exercised. – The appraisal right may be
exercised by any stockholder who shall have voted against the
proposed corporate action, by making a written demand on the
corporation within thirty (30) days after the date on which the vote
was taken for payment of the fair value of his shares: Provided,
That failure to make the demand within such period shall be
deemed a waiver of the appraisal right. If the proposed corporate
action is implemented or affected, the corporation shall pay to
such stockholder, upon surrender of the certificate or certificates
of stock representing his shares, the fair value thereof as of the
day prior to the date on which the vote was taken, excluding any
appreciation or depreciation in anticipation of such corporate
action.
If within a period of sixty (60) days from the date the corporate
action was approved by the stockholders, the withdrawing
stockholder and the corporation cannot agree on the fair value of
the shares, it shall be determined and appraised by three (3)
disinterested persons, one of whom shall be named by the
stockholder, another by the corporation, and the third by the two
thus chosen. The findings of the majority of the appraisers shall be
final, and their award shall be paid by the corporation within thirty
(30) days after such award is made: Provided, That no payment
shall be made to any dissenting stockholder unless the
corporation has unrestricted retained earnings in its books to
cover such payment: and Provided, further, That upon payment by
the corporation of the agreed or awarded price, the stockholder
shall forthwith transfer his shares to the corporation. (n)
Section 83. Effect of demand and termination of right. – From the
time of demand for payment of the fair value of a stockholder’s
shares until either the abandonment of the corporate action
involved or the purchase of the said shares by the corporation, all
rights accruing to such shares, including voting and dividend
rights, shall be suspended in accordance with the provisions of
this Code, except the right of such stockholder to receive payment
of the fair value thereof: Provided, That if the dissenting
stockholder is not paid the value of his shares within 30 days after
the award, his voting and dividend rights shall immediately be
restored. (n)
Section 84. When right to payment ceases. – No demand for
payment under this Title may be withdrawn unless the corporation
consents thereto. If, however, such demand for payment is
withdrawn with the consent of the corporation, or if the proposed
corporate action is abandoned or rescinded by the corporation or
disapproved by the Securities and Exchange Commission where
such approval is necessary, or if the Securities and Exchange
Commission determines that such stockholder is not entitled to the
appraisal right, then the right of said stockholder to be paid the fair
value of his shares shall cease, his status as a stockholder shall
thereupon be restored, and all dividend distributions which would
have accrued on his shares shall be paid to him. (n)
Section 85. Who bears costs of appraisal. – The costs and
expenses of appraisal shall be borne by the corporation, unless
the fair value ascertained by the appraisers is approximately the
same as the price which the corporation may have offered to pay
the stockholder, in which case they shall be borne by the latter. In
the case of an action to recover such fair value, all costs and
expenses shall be assessed against the corporation, unless the
refusal of the stockholder to receive payment was unjustified. (n)
Section 86. Notation on certificates; rights of transferee. – Within
ten (10) days after demanding payment for his shares, a
dissenting stockholder shall submit the certificates of stock
representing his shares to the corporation for notation thereon that
such shares are dissenting shares. His failure to do so shall, at the
option of the corporation, terminate his rights under this Title. If
shares represented by the certificates bearing such notation are
transferred, and the certificates consequently cancelled, the rights
of the transferor as a dissenting stockholder under this Title shall
cease and the transferee shall have all the rights of a regular
stockholder; and all dividend distributions which would have
accrued on such shares shall be paid to the transferee. (n)
TITLE XI
NON-STOCK CORPORATIONS
Section 87. Definition. – For the purposes of this Code, a non-
stock corporation is one where no part of its income is
distributable as dividends to its members, trustees, or officers,
subject to the provisions of this Code on dissolution: Provided,
That any profit which a non-stock corporation may obtain as an
incident to its operations shall, whenever necessary or proper, be
used for the furtherance of the purpose or purposes for which the
corporation was organized, subject to the provisions of this Title.
The provisions governing stock corporation, when pertinent, shall
be applicable to non-stock corporations, except as may be
covered by specific provisions of this Title. (n)
Section 88. Purposes. – Non-stock corporations may be formed
or organized for charitable, religious, educational, professional,
cultural, fraternal, literary, scientific, social, civic service, or similar
purposes, like trade, industry, agricultural and like chambers, or
any combination thereof, subject to the special provisions of this
Title governing particular classes of non-stock corporations. (n)
CHAPTER I
MEMBERS
Section 89. Right to vote. – The right of the members of any class
or classes to vote may be limited, broadened or denied to the
extent specified in the articles of incorporation or the by-laws.
Unless so limited, broadened or denied, each member, regardless
of class, shall be entitled to one vote.
Unless otherwise provided in the articles of incorporation or the
by-laws, a member may vote by proxy in accordance with the
provisions of this Code. (n)
Voting by mail or other similar means by members of non-stock
corporations may be authorized by the by-laws of non-stock
corporations with the approval of, and under such conditions
which may be prescribed by, the Securities and Exchange
Commission.
Section 90. Non-transferability of membership. – Membership in a
non-stock corporation and all rights arising therefrom are personal
and non-transferable, unless the articles of incorporation or the
by-laws otherwise provide. (n)
Section 91. Termination of membership. – Membership shall be
terminated in the manner and for the causes provided in the
articles of incorporation or the by-laws. Termination of
membership shall have the effect of extinguishing all rights of a
member in the corporation or in its property, unless otherwise
provided in the articles of incorporation or the by-laws. (n)
CHAPTER II
TRUSTEES AND OFFICES
Section 92. Election and term of trustees. – Unless otherwise
provided in the articles of incorporation or the by-laws, the board
of trustees of non-stock corporations, which may be more than
fifteen (15) in number as may be fixed in their articles of
incorporation or by-laws, shall, as soon as organized, so classify
themselves that the term of office of one-third (1/3) of their number
shall expire every year; and subsequent elections of trustees
comprising one-third (1/3) of the board of trustees shall be held
annually and trustees so elected shall have a term of three (3)
years. Trustees thereafter elected to fill vacancies occurring
before the expiration of a particular term shall hold office only for
the unexpired period.
No person shall be elected as trustee unless he is a member of
the corporation.
Unless otherwise provided in the articles of incorporation or the
by-laws, officers of a non-stock corporation may be directly
elected by the members. (n)
Section 93. Place of meetings. – The by-laws may provide that
the members of a non-stock corporation may hold their regular or
special meetings at any place even outside the place where the
principal office of the corporation is located: Provided, That proper
notice is sent to all members indicating the date, time and place of
the meeting: and Provided, further, That the place of meeting shall
be within the Philippines. (n)
CHAPTER III
DISTRIBUTION OF ASSETS IN NON-STOCK CORPORATIONS
Section 94. Rules of distribution. – In case dissolution of a non-
stock corporation in accordance with the provisions of this Code,
its assets shall be applied and distributed as follows:
1. All liabilities and obligations of the corporation
shall be paid, satisfied and discharged, or adequate
provision shall be made therefore;
2. Assets held by the corporation upon a condition
requiring return, transfer or conveyance, and which
condition occurs by reason of the dissolution, shall
be returned, transferred or conveyed in accordance
with such requirements;
3. Assets received and held by the corporation
subject to limitations permitting their use only for
charitable, religious, benevolent, educational or
similar purposes, but not held upon a condition
requiring return, transfer or conveyance by reason
of the dissolution, shall be transferred or conveyed
to one or more corporations, societies or
organizations engaged in activities in the
Philippines substantially similar to those of the
dissolving corporation according to a plan of
distribution adopted pursuant to this Chapter;
4. Assets other than those mentioned in the
preceding paragraphs, if any, shall be distributed in
accordance with the provisions of the articles of
incorporation or the by-laws, to the extent that the
articles of incorporation or the by-laws, determine
the distributive rights of members, or any class or
classes of members, or provide for distribution; and
5. In any other case, assets may be distributed to
such persons, societies, organizations or
corporations, whether or not organized for profit, as
may be specified in a plan of distribution adopted
pursuant to this Chapter. (n)
Section 95. Plan of distribution of assets. – A plan providing for
the distribution of assets, not inconsistent with the provisions of
this Title, may be adopted by a non-stock corporation in the
process of dissolution in the following manner:
The board of trustees shall, by majority vote, adopt a resolution
recommending a plan of distribution and directing the submission
thereof to a vote at a regular or special meeting of members
having voting rights. Written notice setting forth the proposed plan
of distribution or a summary thereof and the date, time and place
of such meeting shall be given to each member entitled to vote,
within the time and in the manner provided in this Code for the
giving of notice of meetings to members. Such plan of distribution
shall be adopted upon approval of at least two-thirds (2/3) of the
members having voting rights present or represented by proxy at
such meeting. (n)
TITLE XII
CLOSE CORPORATIONS
Section 96. Definition and applicability of Title. - A close
corporation, within the meaning of this Code, is one whose articles
of incorporation provide that: (1) All the corporation’s issued stock
of all classes, exclusive of treasury shares, shall be held of record
by not more than a specified number of persons, not exceeding
twenty (20); (2) all the issued stock of all classes shall be subject
to one or more specified restrictions on transfer permitted by this
Title; and (3) The corporation shall not list in any stock exchange
or make any public offering of any of its stock of any class.
Notwithstanding the foregoing, a corporation shall not be deemed
a close corporation when at least two-thirds (2/3) of its voting
stock or voting rights is owned or controlled by another
corporation which is not a close corporation within the meaning of
this Code.
Any corporation may be incorporated as a close corporation,
except mining or oil companies, stock exchanges, banks,
insurance companies, public utilities, educational institutions and
corporations declared to be vested with public interest in
accordance with the provisions of this Code.
The provisions of this Title shall primarily govern close
corporations: Provided, That the provisions of other Titles of this
Code shall apply suppletorily except insofar as this Title otherwise
provides.
Section 97. Articles of incorporation. – The articles of
incorporation of a close corporation may provide:
1. For a classification of shares or rights and the
qualifications for owning or holding the same and
restrictions on their transfers as may be stated
therein, subject to the provisions of the following
section;
2. For a classification of directors into one or more
classes, each of whom may be voted for and
elected solely by a particular class of stock; and
3. For a greater quorum or voting requirements in
meetings of stockholders or directors than those
provided in this Code.
The articles of incorporation of a close corporation may provide
that the business of the corporation shall be managed by the
stockholders of the corporation rather than by a board of directors.
So long as this provision continues in effect:
1. No meeting of stockholders need be called to
elect directors;
2. Unless the context clearly requires otherwise, the
stockholders of the corporation shall be deemed to
be directors for the purpose of applying the
provisions of this Code; and
3. The stockholders of the corporation shall be
subject to all liabilities of directors.
The articles of incorporation may likewise provide that all officers
or employees or that specified officers or employees shall be
elected or appointed by the stockholders, instead of by the board
of directors.
Section 98. Validity of restrictions on transfer of shares. –
Restrictions on the right to transfer shares must appear in the
articles of incorporation and in the by-laws as well as in the
certificate of stock; otherwise, the same shall not be binding on
any purchaser thereof in good faith. Said restrictions shall not be
more onerous than granting the existing stockholders or the
corporation the option to purchase the shares of the transferring
stockholder with such reasonable terms, conditions or period
stated therein. If upon the expiration of said period, the existing
stockholders or the corporation fails to exercise the option to
purchase, the transferring stockholder may sell his shares to any
third person.
Section 99. Effects of issuance or transfer of stock in breach of
qualifying conditions. -
1. If stock of a close corporation is issued or
transferred to any person who is not entitled under
any provision of the articles of incorporation to be a
holder of record of its stock, and if the certificate for
such stock conspicuously shows the qualifications
of the persons entitled to be holders of record
thereof, such person is conclusively presumed to
have notice of the fact of his ineligibility to be a
stockholder.
2. If the articles of incorporation of a close
corporation states the number of persons, not
exceeding twenty (20), who are entitled to be
holders of record of its stock, and if the certificate
for such stock conspicuously states such number,
and if the issuance or transfer of stock to any
person would cause the stock to be held by more
than such number of persons, the person to whom
such stock is issued or transferred is conclusively
presumed to have notice of this fact.
3. If a stock certificate of any close corporation
conspicuously shows a restriction on transfer of
stock of the corporation, the transferee of the stock
is conclusively presumed to have notice of the fact
that he has acquired stock in violation of the
restriction, if such acquisition violates the
restriction.
4. Whenever any person to whom stock of a close
corporation has been issued or transferred has, or
is conclusively presumed under this section to
have, notice either (a) that he is a person not
eligible to be a holder of stock of the corporation, or
(b) that transfer of stock to him would cause the
stock of the corporation to be held by more than the
number of persons permitted by its articles of
incorporation to hold stock of the corporation, or (c)
that the transfer of stock is in violation of a
restriction on transfer of stock, the corporation may,
at its option, refuse to register the transfer of stock
in the name of the transferee.
5. The provisions of subsection (4) shall not be
applicable if the transfer of stock, though contrary
to subsections (1), (2) or (3), has been consented
to by all the stockholders of the close corporation,
or if the close corporation has amended its articles
of incorporation in accordance with this Title.
6. The term "transfer", as used in this section, is not
limited to a transfer for value.
7. The provisions of this section shall not impair any
right which the transferee may have to rescind the
transfer or to recover under any applicable
warranty, express or implied.
Section 100. Agreements by stockholders. -
1. Agreements by and among stockholders
executed before the formation and organization of a
close corporation, signed by all stockholders, shall
survive the incorporation of such corporation and
shall continue to be valid and binding between and
among such stockholders, if such be their intent, to
the extent that such agreements are not
inconsistent with the articles of incorporation,
irrespective of where the provisions of such
agreements are contained, except those required
by this Title to be embodied in said articles of
incorporation.
2. An agreement between two or more
stockholders, if in writing and signed by the parties
thereto, may provide that in exercising any voting
rights, the shares held by them shall be voted as
therein provided, or as they may agree, or as
determined in accordance with a procedure agreed
upon by them.
3. No provision in any written agreement signed by
the stockholders, relating to any phase of the
corporate affairs, shall be invalidated as between
the parties on the ground that its effect is to make
them partners among themselves.
4. A written agreement among some or all of the
stockholders in a close corporation shall not be
invalidated on the ground that it so relates to the
conduct of the business and affairs of the
corporation as to restrict or interfere with the
discretion or powers of the board of directors:
Provided, That such agreement shall impose on the
stockholders who are parties thereto the liabilities
for managerial acts imposed by this Code on
directors.
5. To the extent that the stockholders are actively
engaged in the management or operation of the
business and affairs of a close corporation, the
stockholders shall be held to strict fiduciary duties
to each other and among themselves. Said
stockholders shall be personally liable for corporate
torts unless the corporation has obtained
reasonably adequate liability insurance.
Section 101. When board meeting is unnecessary or improperly
held. - Unless the by-laws provide otherwise, any action by the
directors of a close corporation without a meeting shall
nevertheless be deemed valid if:
1. Before or after such action is taken, written
consent thereto is signed by all the directors; or
2. All the stockholders have actual or implied
knowledge of the action and make no prompt
objection thereto in writing; or
3. The directors are accustomed to take informal
action with the express or implied acquiescence of
all the stockholders; or
4. All the directors have express or implied
knowledge of the action in question and none of
them makes prompt objection thereto in writing.
If a director’s meeting is held without proper call or notice, an
action taken therein within the corporate powers is deemed ratified
by a director who failed to attend, unless he promptly files his
written objection with the secretary of the corporation after having
knowledge thereof.
Section 102. Pre-emptive right in close corporations. – The pre-
emptive right of stockholders in close corporations shall extend to
all stock to be issued, including reissuance of treasury shares,
whether for money, property or personal services, or in payment
of corporate debts, unless the articles of incorporation provide
otherwise.
Section 103. Amendment of articles of incorporation. – Any
amendment to the articles of incorporation which seeks to delete
or remove any provision required by this Title to be contained in
the articles of incorporation or to reduce a quorum or voting
requirement stated in said articles of incorporation shall not be
valid or effective unless approved by the affirmative vote of at
least two-thirds (2/3) of the outstanding capital stock, whether with
or without voting rights, or of such greater proportion of shares as
may be specifically provided in the articles of incorporation for
amending, deleting or removing any of the aforesaid provisions, at
a meeting duly called for the purpose.
Section 104. Deadlocks. – Notwithstanding any contrary provision
in the articles of incorporation or by-laws or agreement of
stockholders of a close corporation, if the directors or stockholders
are so divided respecting the management of the corporation’s
business and affairs that the votes required for any corporate
action cannot be obtained, with the consequence that the
business and affairs of the corporation can no longer be
conducted to the advantage of the stockholders generally, the
Securities and Exchange Commission, upon written petition by
any stockholder, shall have the power to arbitrate the dispute. In
the exercise of such power, the Commission shall have authority
to make such order as it deems appropriate, including an order:
(1) cancelling or altering any provision contained in the articles of
incorporation, by-laws, or any stockholder’s agreement; (2)
cancelling, altering or enjoining any resolution or act of the
corporation or its board of directors, stockholders, or officers; (3)
directing or prohibiting any act of the corporation or its board of
directors, stockholders, officers, or other persons party to the
action; (4) requiring the purchase at their fair value of shares of
any stockholder, either by the corporation regardless of the
availability of unrestricted retained earnings in its books, or by the
other stockholders; (5) appointing a provisional director; (6)
dissolving the corporation; or (7) granting such other relief as the
circumstances may warrant.
A provisional director shall be an impartial person who is neither a
stockholder nor a creditor of the corporation or of any subsidiary
or affiliate of the corporation, and whose further qualifications, if
any, may be determined by the Commission. A provisional director
is not a receiver of the corporation and does not have the title and
powers of a custodian or receiver. A provisional director shall have
all the rights and powers of a duly elected director of the
corporation, including the right to notice of and to vote at meetings
of directors, until such time as he shall be removed by order of the
Commission or by all the stockholders. His compensation shall be
determined by agreement between him and the corporation
subject to approval of the Commission, which may fix his
compensation in the absence of agreement or in the event of
disagreement between the provisional director and the
corporation.
Section 105. Withdrawal of stockholder or dissolution of
corporation. – In addition and without prejudice to other rights and
remedies available to a stockholder under this Title, any
stockholder of a close corporation may, for any reason, compel
the said corporation to purchase his shares at their fair value,
which shall not be less than their par or issued value, when the
corporation has sufficient assets in its books to cover its debts and
liabilities exclusive of capital stock: Provided, That any stockholder
of a close corporation may, by written petition to the Securities
and Exchange Commission, compel the dissolution of such
corporation whenever any of acts of the directors, officers or those
in control of the corporation is illegal, or fraudulent, or dishonest,
or oppressive or unfairly prejudicial to the corporation or any
stockholder, or whenever corporate assets are being misapplied
or wasted.
TITLE XIII
SPECIAL CORPORATIONS
CHAPTER I - EDUCATIONAL CORPORATIONS
Section 106. Incorporation. – Educational corporations shall be
governed by special laws and by the general provisions of this
Code. (n)
Section 107. Pre-requisites to incorporation. – Except upon
favorable recommendation of the Ministry of Education and
Culture, the Securities and Exchange Commission shall not
accept or approve the articles of incorporation and by-laws of any
educational institution. (168a)
Section 108. Board of trustees. – Trustees of educational
institutions organized as non-stock corporations shall not be less
than five (5) nor more than fifteen (15): Provided, however, That
the number of trustees shall be in multiples of five (5).
Unless otherwise provided in the articles of incorporation on the
by-laws, the board of trustees of incorporated schools, colleges, or
other institutions of learning shall, as soon as organized, so
classify themselves that the term of office of one-fifth (1/5) of their
number shall expire every year. Trustees thereafter elected to fill
vacancies, occurring before the expiration of a particular term,
shall hold office only for the unexpired period. Trustees elected
thereafter to fill vacancies caused by expiration of term shall hold
office for five (5) years. A majority of the trustees shall constitute a
quorum for the transaction of business. The powers and authority
of trustees shall be defined in the by-laws.
For institutions organized as stock corporations, the number and
term of directors shall be governed by the provisions on stock
corporations. (169a)
CHAPTER II
RELIGIOUS CORPORATIONS
Section 109. Classes of religious corporations. – Religious
corporations may be incorporated by one or more persons. Such
corporations may be classified into corporations sole and religious
societies.
Religious corporations shall be governed by this Chapter and by
the general provisions on non-stock corporations insofar as they
may be applicable. (n)
Section 110. Corporation sole. – For the purpose of administering
and managing, as trustee, the affairs, property and temporalities
of any religious denomination, sect or church, a corporation sole
may be formed by the chief archbishop, bishop, priest, minister,
rabbi or other presiding elder of such religious denomination, sect
or church. (154a)
Section 111. Articles of incorporation. – In order to become a
corporation sole, the chief archbishop, bishop, priest, minister,
rabbi or presiding elder of any religious denomination, sect or
church must file with the Securities and Exchange Commission
articles of incorporation setting forth the following:
1. That he is the chief archbishop, bishop, priest,
minister, rabbi or presiding elder of his religious
denomination, sect or church and that he desires to
become a corporation sole;
2. That the rules, regulations and discipline of his
religious denomination, sect or church are not
inconsistent with his becoming a corporation sole
and do not forbid it;
3. That as such chief archbishop, bishop, priest,
minister, rabbi or presiding elder, he is charged with
the administration of the temporalities and the
management of the affairs, estate and properties of
his religious denomination, sect or church within his
territorial jurisdiction, describing such territorial
jurisdiction;
 4. The manner in which any vacancy occurring in
the office of chief archbishop, bishop, priest,
minister, rabbi of presiding elder is required to be
filled, according to the rules, regulations or
discipline of the religious denomination, sect or
church to which he belongs; and
5. The place where the principal office of the
corporation sole is to be established and located,
which place must be within the Philippines.
The articles of incorporation may include any other
provision not contrary to law for the regulation of
the affairs of the corporation. (n)
Section 112. Submission of the articles of incorporation. – The
articles of incorporation must be verified, before filing, by affidavit
or affirmation of the chief archbishop, bishop, priest, minister,
rabbi or presiding elder, as the case may be, and accompanied by
a copy of the commission, certificate of election or letter of
appointment of such chief archbishop, bishop, priest, minister,
rabbi or presiding elder, duly certified to be correct by any notary
public.
From and after the filing with the Securities and Exchange
Commission of the said articles of incorporation, verified by
affidavit or affirmation, and accompanied by the documents
mentioned in the preceding paragraph, such chief archbishop,
bishop, priest, minister, rabbi or presiding elder shall become a
corporation sole and all temporalities, estate and properties of the
religious denomination, sect or church theretofore administered or
managed by him as such chief archbishop, bishop, priest,
minister, rabbi or presiding elder shall be held in trust by him as a
corporation sole, for the use, purpose, behalf and sole benefit of
his religious denomination, sect or church, including hospitals,
schools, colleges, orphan asylums, parsonages and cemeteries
thereof. (n)
Section 113. Acquisition and alienation of property. – Any
corporation sole may purchase and hold real estate and personal
property for its church, charitable, benevolent or educational
purposes, and may receive bequests or gifts for such purposes.
Such corporation may sell or mortgage real property held by it by
obtaining an order for that purpose from the Court of First Instance
of the province where the property is situated upon proof made to
the satisfaction of the court that notice of the application for leave
to sell or mortgage has been given by publication or otherwise in
such manner and for such time as said court may have directed,
and that it is to the interest of the corporation that leave to sell or
mortgage should be granted. The application for leave to sell or
mortgage must be made by petition, duly verified, by the chief
archbishop, bishop, priest, minister, rabbi or presiding elder acting
as corporation sole, and may be opposed by any member of the
religious denomination, sect or church represented by the
corporation sole: Provided, That in cases where the rules,
regulations and discipline of the religious denomination, sect or
church, religious society or order concerned represented by such
corporation sole regulate the method of acquiring, holding, selling
and mortgaging real estate and personal property, such rules,
regulations and discipline shall control, and the intervention of the
courts shall not be necessary. (159a)
Section 114. Filling of vacancies. – The successors in office of
any chief archbishop, bishop, priest, minister, rabbi or presiding
elder in a corporation sole shall become the corporation sole on
their accession to office and shall be permitted to transact
business as such on the filing with the Securities and Exchange
Commission of a copy of their commission, certificate of election,
or letters of appointment, duly certified by any notary public.
During any vacancy in the office of chief archbishop, bishop,
priest, minister, rabbi or presiding elder of any religious
denomination, sect or church incorporated as a corporation sole,
the person or persons authorized and empowered by the rules,
regulations or discipline of the religious denomination, sect or
church represented by the corporation sole to administer the
temporalities and manage the affairs, estate and properties of the
corporation sole during the vacancy shall exercise all the powers
and authority of the corporation sole during such vacancy. (158a)
Section 115. Dissolution. – A corporation sole may be dissolved
and its affairs settled voluntarily by submitting to the Securities
and Exchange Commission a verified declaration of dissolution.
The declaration of dissolution shall set forth:
1. The name of the corporation;
2. The reason for dissolution and winding up;
3. The authorization for the dissolution of the
corporation by the particular religious
denomination, sect or church;
4. The names and addresses of the persons who
are to supervise the winding up of the affairs of the
corporation.
Upon approval of such declaration of dissolution by
the Securities and Exchange Commission, the
corporation shall cease to carry on its operations
except for the purpose of winding up its affairs. (n)
Section 116. Religious societies. – Any religious society or
religious order, or any diocese, synod, or district organization of
any religious denomination, sect or church, unless forbidden by
the constitution, rules, regulations, or discipline of the religious
denomination, sect or church of which it is a part, or by competent
authority, may, upon written consent and/or by an affirmative vote
at a meeting called for the purpose of at least two-thirds (2/3) of its
membership, incorporate for the administration of its temporalities
or for the management of its affairs, properties and estate by filing
with the Securities and Exchange Commission, articles of
incorporation verified by the affidavit of the presiding elder,
secretary, or clerk or other member of such religious society or
religious order, or diocese, synod, or district organization of the
religious denomination, sect or church, setting forth the following:
1. That the religious society or religious order, or
diocese, synod, or district organization is a religious
organization of a religious denomination, sect or
church;
2. That at least two-thirds (2/3) of its membership
have given their written consent or have voted to
incorporate, at a duly convened meeting of the
body;
3. That the incorporation of the religious society or
religious order, or diocese, synod, or district
organization desiring to incorporate is not forbidden
by competent authority or by the constitution, rules,
regulations or discipline of the religious
denomination, sect, or church of which it forms a
part;
4. That the religious society or religious order, or
diocese, synod, or district organization desires to
incorporate for the administration of its affairs,
properties and estate;
5. The place where the principal office of the
corporation is to be established and located, which
place must be within the Philippines; and
6. The names, nationalities, and residences of the
trustees elected by the religious society or religious
order, or the diocese, synod, or district organization
to serve for the first year or such other period as
may be prescribed by the laws of the religious
society or religious order, or of the diocese, synod,
or district organization, the board of trustees to be
not less than five (5) nor more than fifteen (15).
(160a)
TITLE XIV
DISSOLUTION
Section 117. Methods of dissolution. – A corporation formed or
organized under the provisions of this Code may be dissolved
voluntarily or involuntarily. (n)
Section 118. Voluntary dissolution where no creditors are
affected. – If dissolution of a corporation does not prejudice the
rights of any creditor having a claim against it, the dissolution may
be effected by majority vote of the board of directors or trustees,
and by a resolution duly adopted by the affirmative vote of the
stockholders owning at least two-thirds (2/3) of the outstanding
capital stock or of at least two-thirds (2/3) of the members of a
meeting to be held upon call of the directors or trustees after
publication of the notice of time, place and object of the meeting
for three (3) consecutive weeks in a newspaper published in the
place where the principal office of said corporation is located; and
if no newspaper is published in such place, then in a newspaper of
general circulation in the Philippines, after sending such notice to
each stockholder or member either by registered mail or by
personal delivery at least thirty (30) days prior to said meeting. A
copy of the resolution authorizing the dissolution shall be certified
by a majority of the board of directors or trustees and
countersigned by the secretary of the corporation. The Securities
and Exchange Commission shall thereupon issue the certificate of
dissolution. (62a)
Section 119. Voluntary dissolution where creditors are affected. –
Where the dissolution of a corporation may prejudice the rights of
any creditor, the petition for dissolution shall be filed with the
Securities and Exchange Commission. The petition shall be
signed by a majority of its board of directors or trustees or other
officers having the management of its affairs, verified by its
president or secretary or one of its directors or trustees, and shall
set forth all claims and demands against it, and that its dissolution
was resolved upon by the affirmative vote of the stockholders
representing at least two-thirds (2/3) of the outstanding capital
stock or by at least two-thirds (2/3) of the members at a meeting of
its stockholders or members called for that purpose.
If the petition is sufficient in form and substance, the Commission
shall, by an order reciting the purpose of the petition, fix a date on
or before which objections thereto may be filed by any person,
which date shall not be less than thirty (30) days nor more than
sixty (60) days after the entry of the order. Before such date, a
copy of the order shall be published at least once a week for three
(3) consecutive weeks in a newspaper of general circulation
published in the municipality or city where the principal office of
the corporation is situated, or if there be no such newspaper, then
in a newspaper of general circulation in the Philippines, and a
similar copy shall be posted for three (3) consecutive weeks in
three (3) public places in such municipality or city.
Upon five (5) day’s notice, given after the date on which the right
to file objections as fixed in the order has expired, the Commission
shall proceed to hear the petition and try any issue made by the
objections filed; and if no such objection is sufficient, and the
material allegations of the petition are true, it shall render
judgment dissolving the corporation and directing such disposition
of its assets as justice requires, and may appoint a receiver to
collect such assets and pay the debts of the corporation. (Rule
104, RCa)
Section 120. Dissolution by shortening corporate term. – A
voluntary dissolution may be effected by amending the articles of
incorporation to shorten the corporate term pursuant to the
provisions of this Code. A copy of the amended articles of
incorporation shall be submitted to the Securities and Exchange
Commission in accordance with this Code. Upon approval of the
amended articles of incorporation of the expiration of the
shortened term, as the case may be, the corporation shall be
deemed dissolved without any further proceedings, subject to the
provisions of this Code on liquidation. (n)
Section 121. Involuntary dissolution. – A corporation may be
dissolved by the Securities and Exchange Commission upon filing
of a verified complaint and after proper notice and hearing on the
grounds provided by existing laws, rules and regulations. (n)
Section 122. Corporate liquidation. – Every corporation whose
charter expires by its own limitation or is annulled by forfeiture or
otherwise, or whose corporate existence for other purposes is
terminated in any other manner, shall nevertheless be continued
as a body corporate for three (3) years after the time when it
would have been so dissolved, for the purpose of prosecuting and
defending suits by or against it and enabling it to settle and close
its affairs, to dispose of and convey its property and to distribute
its assets, but not for the purpose of continuing the business for
which it was established.
At any time during said three (3) years, the corporation is
authorized and empowered to convey all of its property to trustees
for the benefit of stockholders, members, creditors, and other
persons in interest. From and after any such conveyance by the
corporation of its property in trust for the benefit of its
stockholders, members, creditors and others in interest, all
interest which the corporation had in the property terminates, the
legal interest vests in the trustees, and the beneficial interest in
the stockholders, members, creditors or other persons in interest.
Upon the winding up of the corporate affairs, any asset
distributable to any creditor or stockholder or member who is
unknown or cannot be found shall be escheated to the city or
municipality where such assets are located.
Except by decrease of capital stock and as otherwise allowed by
this Code, no corporation shall distribute any of its assets or
property except upon lawful dissolution and after payment of all its
debts and liabilities. (77a, 89a, 16a)
TITLE XV
FOREIGN CORPORATIONS
Section 123. Definition and rights of foreign corporations. – For
the purposes of this Code, a foreign corporation is one formed,
organized or existing under any laws other than those of the
Philippines and whose laws allow Filipino citizens and
corporations to do business in its own country or state. It shall
have the right to transact business in the Philippines after it shall
have obtained a license to transact business in this country in
accordance with this Code and a certificate of authority from the
appropriate government agency. (n)
Section 124. Application to existing foreign corporations. – Every
foreign corporation which on the date of the effectivity of this Code
is authorized to do business in the Philippines under a license
therefore issued to it, shall continue to have such authority under
the terms and condition of its license, subject to the provisions of
this Code and other special laws. (n)
Section 125. Application for a license. – A foreign corporation
applying for a license to transact business in the Philippines shall
submit to the Securities and Exchange Commission a copy of its
articles of incorporation and by-laws, certified in accordance with
law, and their translation to an official language of the Philippines,
if necessary. The application shall be under oath and, unless
already stated in its articles of incorporation, shall specifically set
forth the following:
1. The date and term of incorporation;
2. The address, including the street number, of the
principal office of the corporation in the country or
state of incorporation;
3. The name and address of its resident agent
authorized to accept summons and process in all
legal proceedings and, pending the establishment
of a local office, all notices affecting the
corporation;
4. The place in the Philippines where the
corporation intends to operate;
5. The specific purpose or purposes which the
corporation intends to pursue in the transaction of
its business in the Philippines: Provided, That said
purpose or purposes are those specifically stated in
the certificate of authority issued by the appropriate
government agency;
6. The names and addresses of the present
directors and officers of the corporation;
7. A statement of its authorized capital stock and
the aggregate number of shares which the
corporation has authority to issue, itemized by
classes, par value of shares, shares without par
value, and series, if any;
8. A statement of its outstanding capital stock and
the aggregate number of shares which the
corporation has issued, itemized by classes, par
value of shares, shares without par value, and
series, if any;
9. A statement of the amount actually paid in; and
10. Such additional information as may be
necessary or appropriate in order to enable the
Securities and Exchange Commission to determine
whether such corporation is entitled to a license to
transact business in the Philippines, and to
determine and assess the fees payable.
Attached to the application for license shall be a
duly executed certificate under oath by the
authorized official or officials of the jurisdiction of its
incorporation, attesting to the fact that the laws of
the country or state of the applicant allow Filipino
citizens and corporations to do business therein,
and that the applicant is an existing corporation in
good standing. If such certificate is in a foreign
language, a translation thereof in English under
oath of the translator shall be attached thereto.
The application for a license to transact business in
the Philippines shall likewise be accompanied by a
statement under oath of the president or any other
person authorized by the corporation, showing to
the satisfaction of the Securities and Exchange
Commission and other governmental agency in the
proper cases that the applicant is solvent and in
sound financial condition, and setting forth the
assets and liabilities of the corporation as of the
date not exceeding one (1) year immediately prior
to the filing of the application.
Foreign banking, financial and insurance
corporations shall, in addition to the above
requirements, comply with the provisions of existing
laws applicable to them. In the case of all other
foreign corporations, no application for license to
transact business in the Philippines shall be
accepted by the Securities and Exchange
Commission without previous authority from the
appropriate government agency, whenever
required by law. (68a)
Section 126. Issuance of a license. – If the Securities and
Exchange Commission is satisfied that the applicant has complied
with all the requirements of this Code and other special laws, rules
and regulations, the Commission shall issue a license to the
applicant to transact business in the Philippines for the purpose or
purposes specified in such license. Upon issuance of the license,
such foreign corporation may commence to transact business in
the Philippines and continue to do so for as long as it retains its
authority to act as a corporation under the laws of the country or
state of its incorporation, unless such license is sooner
surrendered, revoked, suspended or annulled in accordance with
this Code or other special laws.
Within sixty (60) days after the issuance of the license to transact
business in the Philippines, the license, except foreign banking or
insurance corporation, shall deposit with the Securities and
Exchange Commission for the benefit of present and future
creditors of the licensee in the Philippines, securities satisfactory
to the Securities and Exchange Commission, consisting of bonds
or other evidence of indebtedness of the Government of the
Philippines, its political subdivisions and instrumentalities, or of
government-owned or controlled corporations and entities, shares
of stock in "registered enterprises" as this term is defined in
Republic Act No. 5186, shares of stock in domestic corporations
registered in the stock exchange, or shares of stock in domestic
insurance companies and banks, or any combination of these
kinds of securities, with an actual market value of at least one
hundred thousand (P100,000.) pesos; Provided, however, That
within six (6) months after each fiscal year of the licensee, the
Securities and Exchange Commission shall require the licensee to
deposit additional securities equivalent in actual market value to
two (2%) percent of the amount by which the licensee’s gross
income for that fiscal year exceeds five million (P5,000,000.00)
pesos. The Securities and Exchange Commission shall also
require deposit of additional securities if the actual market value of
the securities on deposit has decreased by at least ten (10%)
percent of their actual market value at the time they were
deposited. The Securities and Exchange Commission may at its
discretion release part of the additional securities deposited with it
if the gross income of the licensee has decreased, or if the actual
market value of the total securities on deposit has increased, by
more than ten (10%) percent of the actual market value of the
securities at the time they were deposited. The Securities and
Exchange Commission may, from time to time, allow the licensee
to substitute other securities for those already on deposit as long
as the licensee is solvent. Such licensee shall be entitled to collect
the interest or dividends on the securities deposited. In the event
the licensee ceases to do business in the Philippines, the
securities deposited as aforesaid shall be returned, upon the
licensee’s application therefor and upon proof to the satisfaction of
the Securities and Exchange Commission that the licensee has no
liability to Philippine residents, including the Government of the
Republic of the Philippines. (n)
Section 127. Who may be a resident agent. – A resident agent
may be either an individual residing in the Philippines or a
domestic corporation lawfully transacting business in the
Philippines: Provided, That in the case of an individual, he must
be of good moral character and of sound financial standing. (n)
Section 128. Resident agent; service of process. – The Securities
and Exchange Commission shall require as a condition precedent
to the issuance of the license to transact business in the
Philippines by any foreign corporation that such corporation file
with the Securities and Exchange Commission a written power of
attorney designating some person who must be a resident of the
Philippines, on whom any summons and other legal processes
may be served in all actions or other legal proceedings against
such corporation, and consenting that service upon such resident
agent shall be admitted and held as valid as if served upon the
duly authorized officers of the foreign corporation at its home
office. Any such foreign corporation shall likewise execute and file
with the Securities and Exchange Commission an agreement or
stipulation, executed by the proper authorities of said corporation,
in form and substance as follows:
"The (name of foreign corporation) does hereby stipulate and
agree, in consideration of its being granted by the Securities and
Exchange Commission a license to transact business in the
Philippines, that if at any time said corporation shall cease to
transact business in the Philippines, or shall be without any
resident agent in the Philippines on whom any summons or other
legal processes may be served, then in any action or proceeding
arising out of any business or transaction which occurred in the
Philippines, service of any summons or other legal process may
be made upon the Securities and Exchange Commission and that
such service shall have the same force and effect as if made upon
the duly-authorized officers of the corporation at its home office."
Whenever such service of summons or other process shall be
made upon the Securities and Exchange Commission, the
Commission shall, within ten (10) days thereafter, transmit by mail
a copy of such summons or other legal process to the corporation
at its home or principal office. The sending of such copy by the
Commission shall be necessary part of and shall complete such
service. All expenses incurred by the Commission for such service
shall be paid in advance by the party at whose instance the
service is made.
In case of a change of address of the resident agent, it shall be his
or its duty to immediately notify in writing the Securities and
Exchange Commission of the new address. (72a; and n)
Section 129. Law applicable. – Any foreign corporation lawfully
doing business in the Philippines shall be bound by all laws, rules
and regulations applicable to domestic corporations of the same
class, except such only as provide for the creation, formation,
organization or dissolution of corporations or those which fix the
relations, liabilities, responsibilities, or duties of stockholders,
members, or officers of corporations to each other or to the
corporation. (73a)
Section 130. Amendments to articles of incorporation or by-laws
of foreign corporations. – Whenever the articles of incorporation or
by-laws of a foreign corporation authorized to transact business in
the Philippines are amended, such foreign corporation shall, within
sixty (60) days after the amendment becomes effective, file with
the Securities and Exchange Commission, and in the proper
cases with the appropriate government agency, a duly
authenticated copy of the articles of incorporation or by-laws, as
amended, indicating clearly in capital letters or by underscoring
the change or changes made, duly certified by the authorized
official or officials of the country or state of incorporation. The filing
thereof shall not of itself enlarge or alter the purpose or purposes
for which such corporation is authorized to transact business in
the Philippines. (n)
Section 131. Amended license. – A foreign corporation authorized
to transact business in the Philippines shall obtain an amended
license in the event it changes its corporate name, or desires to
pursue in the Philippines other or additional purposes, by
submitting an application therefor to the Securities and Exchange
Commission, favorably endorsed by the appropriate government
agency in the proper cases. (n)
Section 132. Merger or consolidation involving a foreign
corporation licensed in the Philippines. – One or more foreign
corporations authorized to transact business in the Philippines
may merge or consolidate with any domestic corporation or
corporations if such is permitted under Philippine laws and by the
law of its incorporation: Provided, That the requirements on
merger or consolidation as provided in this Code are followed.
Whenever a foreign corporation authorized to transact business in
the Philippines shall be a party to a merger or consolidation in its
home country or state as permitted by the law of its incorporation,
such foreign corporation shall, within sixty (60) days after such
merger or consolidation becomes effective, file with the Securities
and Exchange Commission, and in proper cases with the
appropriate government agency, a copy of the articles of merger
or consolidation duly authenticated by the proper official or
officials of the country or state under the laws of which merger or
consolidation was effected: Provided, however, That if the
absorbed corporation is the foreign corporation doing business in
the Philippines, the latter shall at the same time file a petition for
withdrawal of its license in accordance with this Title. (n)
Section 133. Doing business without a license. – No foreign
corporation transacting business in the Philippines without a
license, or its successors or assigns, shall be permitted to
maintain or intervene in any action, suit or proceeding in any court
or administrative agency of the Philippines; but such corporation
may be sued or proceeded against before Philippine courts or
administrative tribunals on any valid cause of action recognized
under Philippine laws. (69a)
Section 134. Revocation of license. – Without prejudice to other
grounds provided by special laws, the license of a foreign
corporation to transact business in the Philippines may be revoked
or suspended by the Securities and Exchange Commission upon
any of the following grounds:
1. Failure to file its annual report or pay any fees as
required by this Code;
2. Failure to appoint and maintain a resident agent
in the Philippines as required by this Title;
3. Failure, after change of its resident agent or of
his address, to submit to the Securities and
Exchange Commission a statement of such change
as required by this Title;
4. Failure to submit to the Securities and Exchange
Commission an authenticated copy of any
amendment to its articles of incorporation or by-
laws or of any articles of merger or consolidation
within the time prescribed by this Title;
5. A misrepresentation of any material matter in any
application, report, affidavit or other document
submitted by such corporation pursuant to this Title;
6. Failure to pay any and all taxes, imposts,
assessments or penalties, if any, lawfully due to the
Philippine Government or any of its agencies or
political subdivisions;
7. Transacting business in the Philippines outside
of the purpose or purposes for which such
corporation is authorized under its license;
8. Transacting business in the Philippines as agent
of or acting for and in behalf of any foreign
corporation or entity not duly licensed to do
business in the Philippines; or
9. Any other ground as would render it unfit to
transact business in the Philippines. (n)
Section 135. Issuance of certificate of revocation. – Upon the
revocation of any such license to transact business in the
Philippines, the Securities and Exchange Commission shall issue
a corresponding certificate of revocation, furnishing a copy thereof
to the appropriate government agency in the proper cases.
The Securities and Exchange Commission shall also mail to the
corporation at its registered office in the Philippines a notice of
such revocation accompanied by a copy of the certificate of
revocation. (n)
Section 136. Withdrawal of foreign corporations. – Subject to
existing laws and regulations, a foreign corporation licensed to
transact business in the Philippines may be allowed to withdraw
from the Philippines by filing a petition for withdrawal of license.
No certificate of withdrawal shall be issued by the Securities and
Exchange Commission unless all the following requirements are
met;
1. All claims which have accrued in the Philippines
have been paid, compromised or settled;
2. All taxes, imposts, assessments, and penalties, if
any, lawfully due to the Philippine Government or
any of its agencies or political subdivisions have
been paid; and
3. The petition for withdrawal of license has been
published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the
Philippines.
TITLE XVI
MISCELLANEOUS PROVISIONS
Section 137. Outstanding capital stock defined. – The term
"outstanding capital stock", as used in this Code, means the total
shares of stock issued under binding subscription agreements to
subscribers or stockholders, whether or not fully or partially paid,
except treasury shares. (n)
Section 138. Designation of governing boards. – The provisions
of specific provisions of this Code to the contrary notwithstanding,
non-stock or special corporations may, through their articles of
incorporation or their by-laws, designate their governing boards by
any name other than as board of trustees. (n)
Section 139. Incorporation and other fees. – The Securities and
Exchange Commission is hereby authorized to collect and receive
fees as authorized by law or by rules and regulations promulgated
by the Commission.1âwphi1 (n)
Section 140. Stock ownership in certain corporations. – Pursuant
to the duties specified by Article XIV of the Constitution, the
National Economic and Development Authority shall, from time to
time, make a determination of whether the corporate vehicle has
been used by any corporation or by business or industry to
frustrate the provisions thereof or of applicable laws, and shall
submit to the Batasang Pambansa, whenever deemed necessary,
a report of its findings, including recommendations for their
prevention or correction.
Maximum limits may be set by the Batasang Pambansa for
stockholdings in corporations declared by it to be vested with a
public interest pursuant to the provisions of this section, belonging
to individuals or groups of individuals related to each other by
consanguinity or affinity or by close business interests, or
whenever it is necessary to achieve national objectives, prevent
illegal monopolies or combinations in restraint or trade, or to
implement national economic policies declared in laws, rules and
regulations designed to promote the general welfare and foster
economic development.
In recommending to the Batasang Pambansa corporations,
businesses or industries to be declared vested with a public
interest and in formulating proposals for limitations on stock
ownership, the National Economic and Development Authority
shall consider the type and nature of the industry, the size of the
enterprise, the economies of scale, the geographic location, the
extent of Filipino ownership, the labor intensity of the activity, the
export potential, as well as other factors which are germane to the
realization and promotion of business and industry.
Section 141. Annual report or corporations. – Every corporation,
domestic or foreign, lawfully doing business in the Philippines
shall submit to the Securities and Exchange Commission an
annual report of its operations, together with a financial statement
of its assets and liabilities, certified by any independent certified
public accountant in appropriate cases, covering the preceding
fiscal year and such other requirements as the Securities and
Exchange Commission may require. Such report shall be
submitted within such period as may be prescribed by the
Securities and Exchange Commission. (n)
Section 142. Confidential nature of examination results. – All
interrogatories propounded by the Securities and Exchange
Commission and the answers thereto, as well as the results of any
examination made by the Commission or by any other official
authorized by law to make an examination of the operations,
books and records of any corporation, shall be kept strictly
confidential, except insofar as the law may require the same to be
made public or where such interrogatories, answers or results are
necessary to be presented as evidence before any court. (n)
Section 143. Rule-making power of the Securities and Exchange
Commission. – The Securities and Exchange Commission shall
have the power and authority to implement the provisions of this
Code, and to promulgate rules and regulations reasonably
necessary to enable it to perform its duties hereunder, particularly
in the prevention of fraud and abuses on the part of the controlling
stockholders, members, directors, trustees or officers. (n)
Section 144. Violations of the Code. – Violations of any of the
provisions of this Code or its amendments not otherwise
specifically penalized therein shall be punished by a fine of not
less than one thousand (P1,000.00) pesos but not more than ten
thousand (P10,000.00) pesos or by imprisonment for not less than
thirty (30) days but not more than five (5) years, or both, in the
discretion of the court. If the violation is committed by a
corporation, the same may, after notice and hearing, be dissolved
in appropriate proceedings before the Securities and Exchange
Commission: Provided, That such dissolution shall not preclude
the institution of appropriate action against the director, trustee or
officer of the corporation responsible for said violation: Provided,
further, That nothing in this section shall be construed to repeal
the other causes for dissolution of a corporation provided in this
Code. (190 1/2 a)
Section 145. Amendment or repeal. – No right or remedy in favor
of or against any corporation, its stockholders, members,
directors, trustees, or officers, nor any liability incurred by any
such corporation, stockholders, members, directors, trustees, or
officers, shall be removed or impaired either by the subsequent
dissolution of said corporation or by any subsequent amendment
or repeal of this Code or of any part thereof. (n)
Section 146. Repealing clause. – Except as expressly provided
by this Code, all laws or parts thereof inconsistent with any
provision of this Code shall be deemed repealed. (n)
Section 147. Separability of provisions. – Should any provision of
this Code or any part thereof be declared invalid or
unconstitutional, the other provisions, so far as they are
separable, shall remain in force. (n)
Section 148. Applicability to existing corporations. – All
corporations lawfully existing and doing business in the
Philippines on the date of the effectivity of this Code and
heretofore authorized, licensed or registered by the Securities and
Exchange Commission, shall be deemed to have been authorized,
licensed or registered under the provisions of this Code, subject to
the terms and conditions of its license, and shall be governed by
the provisions hereof: Provided, That if any such corporation is
affected by the new requirements of this Code, said corporation
shall, unless otherwise herein provided, be given a period of not
more than two (2) years from the effectivity of this Code within
which to comply with the same. (n)
Section 149. Effectivity. – This Code shall take effect immediately
upon its approval.
Approved, May 1, 1980